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WTO ANALYTICAL INDEX: AGREEMENT ON GOVERNMENT PROCUREMENT

Agreement on Government Procurement

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The texts reproduced here do not have the legal standing of the original documents which are entrusted and kept at the WTO Secretariat in Geneva.

> Preamble
> Article I
> Article II
> Article III
> Article IV
> Article V
> Article VI
> Article VII
> Article VIII
> Article IX
> Article X
> Article XI
> Article XII
> Article XIII
> Article XIV
> Article XV
> Article XVI
> Article XVII
> Article XVIII
> Article XIX
> Article XX
> Article XXI
> Article XXII
> Article XXIII
> Article XXIV
> Notes to the Agreement on Government Procurement
> Decision on Accession to the Agreement on Government Procurement
> Text of the Revision of the Agreement on Government Procurement as at 13 December 2010

> Analytical Index main page


VII. Article VI    back to top

A. Text of Article VI

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 the processes and methods for their production and requirements relating to conformity assessment procedures prescribed by procuring entities, shall not be prepared, adopted or applied with a view to, or with the effect of, creating unnecessary obstacles to international trade.

 

2     Technical specifications prescribed by procuring entities shall, where appropriate:

 

(a)     be in terms of performance rather than design or descriptive characteristics; and

 

(b)     be based on international standards, where such exist; otherwise, on national technical regulations(3), recognized national standards(4), or building codes.

 

(footnote original) 3 For the purpose of this Agreement, a technical regulation is a document which lays down characteristics of a product or a service or their related processes and production methods, including the 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.

 

(footnote original) 4 For the purpose of this Agreement, a standard is a document approved by a recognized body, that provides, for common and repeated use, rules, guidelines or characteristics for products or services or related processes and production methods, with which compliance is not mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements as they apply to a product, service, process or production method.

 

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.

 
B. Interpretation and Application of Article VI

No jurisprudence or decision of a competent WTO body.

 

VIII. Article VII     back to top

A. Text of Article VII

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.

 

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:

 

(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 individually, only under the conditions specified in Article XV.

 
B. Interpretation and Application of Article VII

21.     The Panel in Guatemala — Cement I referred to Articles VII as an example of an “affirmative obligation” in the WTO Agreements that requires a Member to do something:

“Clearly, the WTO Agreements impose obligations on Members which govern “measures” traditionally defined (e.g., a tariff or quantitative restriction), but many other obligations imposed by the Agreements do not apply to or are not implemented in the context of “measures”. Examples of the latter include affirmative obligations that require a Member to do something, such as enact domestic law or regulations, undertake some mandatory procedure, or undertake some specified action such as submitting a notification to the WTO. In such cases of affirmative obligations on Members, the failure of a Member to effectuate the obligation by taking necessary action, such as the failure of a Member to enact certain intellectual property protections, to open a procurement to public bidding,(25) or to make a required notification, can give rise to disputes.”(26)

 

IX. Article VIII     back to top

A. Text of Article VIII

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:

 

(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 ensure the firm’s capability to fulfil the contract in question. Any conditions for participation required from suppliers, including financial guarantees, technical qualifications and information necessary for establishing the financial, commercial and technical capacity of suppliers, as well as the verification of qualifications, shall be no less favourable to suppliers of other Parties than to domestic suppliers and shall not discriminate among suppliers of other Parties. The financial, commercial and technical capacity of a supplier shall be judged on the basis both of that supplier’s global business activity as well as of its activity in the territory of the procuring entity, taking due account of the legal relationship between the supply organizations;

 

(c)     the process of, and the time required for, qualifying suppliers shall not be used in order to keep suppliers of other Parties off a suppliers’ list or from being considered for a particular intended procurement. Entities shall recognize as qualified suppliers such domestic suppliers or suppliers of other Parties who meet the conditions for participation in a particular intended procurement. 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;

 

(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 lists 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 consistent with the national treatment and nondiscrimination provisions of this Agreement.


B. Interpretation and Application of Article VIII

1. Article VIII(c) — “participate” in a procurement

22.     The Panel in Canada — Wheat Exports and Grain Imports touched upon the meaning of the term “participate” in Article VIII(c) in the context of interpreting the expression “compete for participation” in Article XVII:1(b) of the GATT 1994. The Panel stated that it had no difficulty accepting the notion that enterprises interested in buying the product offered for sale by a state trading enterprise may compete to “participate” in the state trading enterprise’s sales within the meaning of Article XVII:1(b) of the GATT 1994, and then noted that:

 

“It is instructive to note here that the term “participate” appears to be used in very similar context in the WTO Agreement on Government Procurement. Article VIII(c) of the Agreement, which deals with the “Qualification of Suppliers”, provides: …

 

Of course, the closest analogy in the state trading context to the situation envisaged in Article VIII(c) would not be an export STE, but an import STE. Under the second clause of Article XVII:1(b), an import STE is to afford the enterprises of other Members adequate opportunity to “compete for participation in [its] purchases”. We wish to stress, however, that we refer to Article VIII(c) purely for illustrative purposes; we do not rely on that provision as relevant context.”(27)

 

X. Article IX     back to top

A. Text of Article IX

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.

 

2.     The invitation to participate may take the form of a notice of proposed procurement, as provided for in paragraph 6.

 

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.

 

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.

 

5.     Entities which use a notice regarding a qualification system as an invitation to participate shall provide, subject to the considerations referred to in paragraph 4 of Article XVIII and in a timely manner, information which allows all those who have expressed an interest to have a meaningful opportunity to assess their interest in participating in the procurement. This information shall include the information contained in the notices referred to in paragraphs 6 and 8, to the extent such information is available. Information provided to one interested supplier shall be provided in a non-discriminatory manner to the other interested suppliers.

 

6.     Each notice of proposed procurement, referred to in paragraph 2, shall contain the following information:

 

(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 receiving 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:

 

(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

 

(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 the 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 amendment or the re-issued notice shall be given the same circulation as the original documents upon which the amendment is based. Any significant information given to one supplier with respect to a particular intended procurement shall be given simultaneously to all other suppliers concerned in adequate time to permit the suppliers to consider such information and to respond to it.

 

11.     Entities shall make clear, in the notices referred to in this Article or in the publication in which the notices appear, that the procurement is covered by the Agreement.


B. Interpretation and Application of Article IX

No jurisprudence or decision of a competent WTO body.

 

XI. Article X     back to top

A. Text of Article X

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 nondiscriminatory manner.

 

2.     Entities maintaining permanent lists of qualified suppliers may select suppliers to be invited to tender from among those listed. Any selection shall allow for equitable opportunities for suppliers on the lists.

 

3.     Suppliers requesting to participate in a particular intended procurement shall be permitted to submit a tender and be considered, provided, in the case of those not yet qualified, there is sufficient time to complete the qualification procedure under Articles VIII and IX. The number of additional suppliers 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.


B. Interpretation and Application of Article X

No jurisprudence or decision of a competent WTO body.

 

XII. Article XI     back to top

A. Text of Article XI

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 into account such factors as the complexity of the intended procurement, the extent of subcontracting anticipated and the normal time for transmitting tenders by mail from foreign as well as domestic points.

 

(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:

 

(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;

 

(iii)     a statement that interested suppliers should express their interest in the procurement to the entity; and

 

(iv)     a contact point with the entity from which further information may be obtained,

 

the 40-day limit for receipt of tenders may be replaced by a period sufficiently long to enable responsive tendering, which, as a general rule, shall not be less than 24 days, but in any case not less than 10 days;

 

(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.


B. Interpretation and Application of Article XI

No jurisprudence or decision of a competent WTO body.

 

XIII. Article XII     back to top

A. Text of Article XII

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 entity to which tenders should be sent;

 

(b)     the address where requests for supplementary information should be sent;

 

(c)     the language or languages in which tenders and tendering documents must be submitted;

 

(d)     the closing date and time for receipt of tenders and the length of time during which any tender should be open for acceptance;

 

(e)     the persons authorized to be present at the opening of tenders and the date, time and place of this opening;

 

(f)     any economic and technical requirement, financial guarantees and information or documents required from suppliers;

 

(g)     a complete description of the products or services required or of any requirements including technical specifications, conformity certification to be fulfilled, necessary plans, drawings and instructional materials;

 

(h)     the criteria for awarding the contract, including any factors other than price that are to be considered in the evaluation of tenders and the cost elements to be included in evaluating tender prices, such as transport, insurance and 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 conditions;

 

(k)     in accordance with Article XVII the terms and conditions, if any, under which tenders from countries not Parties to this Agreement, but which apply the procedures of that Article, will be entertained.

 

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.


B. Interpretation and Application of Article XII

No jurisprudence or decision of a competent WTO body.

 

XIV. Article XIII     back to top

A. Text of Article XIII

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.


B. Interpretation and Application of Article XIII

No jurisprudence or decision of a competent WTO body.

 

XV. Article XIV     back to top

A. Text of Article XIV

Article XIV: Negotiation

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 paticipants 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.


B. Interpretation and Application of Article XIV

No jurisprudence or decision of a competent WTO body.

 

XVI. Article XV     back to top

A. Text of Article XV

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 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);

 

(footnote original) 5 It is the understanding that “existing equipment” includes software to the extent that the initial procurement of the software was covered by the Agreement.

 

(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);

 

(footnote original) 6 Original development of a first product or service may include limited production or supply in order to incorporate the results of field testing and to demonstrate that the product or service is suitable for production or supply in quantity to acceptable quality standards. It does not extend to quantity production or supply to establish commercial viability or to recover research and development costs.

 

(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.


B. Interpretation and Application of Article XV

No jurisprudence or decision of a competent WTO body.

 

XVII. Article XVI     back to top

A. Text of Article XVI

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)

 

(footnote original) 7 Offsets in government procurement are measures used to encourage local development or improve the balance-of-payments accounts by means of domestic content, licensing of technology, investment requirements, counter-trade or similar requirements.

 

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.


B. Interpretation and Application of Article XVI

No jurisprudence or decision of a competent WTO body.

 

XVIII. Article XVII     back to top

A. Text of Article XVII

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 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.


B. Interpretation and Application of Article XVII

No jurisprudence or decision of a competent WTO body.

 

XIX. Article XVIII     back to top

A. Text of Article XVIII

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 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.


B. Interpretation and Application of Article XVIII

No jurisprudence or decision of a competent WTO body.

 

XX. Article XIX     back to top

A. Text of Article XIX

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 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.


B. Interpretation and Application of Article XIX

1. Article XIX:5

23.       At its meeting of 27 February 1996, the Committee on Government Procurement adopted the recommendation of the Statistical Working Group that the rules of origin used for the purposes of statistical reporting in Article XIX:5 of the Agreement should be the same as those applied under Article IV, which are those used in the normal course of trade.(28)

24.       At its meeting of 4 June 1996, the Committee on Government Procurement adopted the product classification systems for goods and services for purposes of statistical reporting under the Agreement.(29) The systems comprise 26 product categories as proposed by the Chairman(30) and the services classification system as proposed by the Chairman(31), as amended by merging category 71 and 73 into one category named “transport services”.(32)

25.       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.(33)

 

XXI. Article XX     back to top

A. Text of Article XX

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 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.


B. Interpretation and Application of Article XX

No jurisprudence or decision of a competent WTO body.

 

XXII. Article XXI     back to top

A. Text of Article XXI

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 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.


B. Interpretation and Application of Article XXI

1. Article XXI:1

26.     At its meeting of 27 February 1996, the Committee on Government Procurement approved recommendations for decisions adopted by the Interim Committee(34) on Procedures on the Participation of Observers.(35)

27.     At its meeting of 27 February 1996, the Committee on Government Procurement adopted interim procedures on the circulation of documents and on the derestriction of documents, pending definitive measures.(36) Subsequently, at its meeting of 24 February 1997, the Committee on Government Procurement adopted revised procedures with respect to circulation and derestriction of documents.(37) At its meeting of 8 October 2002, the Committee agreed to the revision of that Decision on Circulation and Derestriction of Documents(38) in order to reflect the WTO procedures adopted in the General Council Decision of 14 May 2002 on Procedures for the Circulation and Derestriction of WTO Documents.(39), (40)

 

XXIII. Article XXII     back to top

A. Text of Article XXII

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.

 

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.


B. Interpretation and Application of Article XXII

1. Article XXII:2

(a) Special and additional rules and procedures

28.     As decided by the Committee on Government Procurement in its meeting on 4 June 1996, the Chairman of the Committee notified Special or Additional Rules and Procedures on Dispute Settlement to the Dispute Settlement Body by means of a communication to the Chairman of the Dispute Settlement Body.(41)

(b) Non-violation claim

29.     In Korea — Procurement, the Panel was requested to determine alternatively — if no violation of the Agreement on Government Procurement were found — whether the measures nevertheless nullified or impaired benefits accruing to the United States under the Agreement on Government Procurement, pursuant to Article XXII:2 providing for non-violation claims. The Panel began by noting the general requirements for a “non-violation claim”:

“[N]ormal non-violation cases involve an examination as to whether there is: (1) an application of a measure by a WTO Member; (2) a benefit accruing under the relevant agreement; and (3) nullification or impairment of the benefit due to the application of the measure that could not have been reasonably expected by the exporting Member.”(42)

30.     The Panel on Korea — Procurement then held that the question in the case before it was “whether or not there was a reasonable expectation of an entitlement to a benefit that had accrued pursuant to the negotiation rather than pursuant to a concession”:

“In this case, the United States has asserted that measures it claimed violated the GPA (that is, the imposition of inadequate bid-deadlines; the imposition of certain qualification requirements; the imposition of certain domestic partnering requirements; and the failure to establish effective domestic challenge procedures engaged in by KAA [Korea Airports Authority] and its successors in relation to the IIA [Inchon International Airport] project) nullify or impair benefits accruing to the United States under the GPA, pursuant to Article XXII:2 of the GPA. A key difference between a traditional non-violation case and the present one would seem to be that, normally, the question of ‘reasonable expectation’ is whether or not it was reasonably to be expected that the benefit under an existing concession would be impaired by the measures. However here, if there is to be a non-violation case, the question is whether or not there was a reasonable expectation of an entitlement to a benefit that had accrued pursuant to the negotiation rather than pursuant to a concession.”(43)

31.     Noting that non-violation is an exceptional concept within the WTO dispute settlement system, stemming from the public international law principle of pacta sunt servanda, the Panel however specified that it was not implying that “a complainant [must] affirmatively prove actual bad faith on the part of another Member”:

“[U]pon occasion, it may be the case that some actions, while permissible under one set of rules (e.g., the Agreement on Subsidies and Countervailing Measures is a commonly referenced example of rules in this regard), are not consistent with the spirit of other commitments such as those in negotiated Schedules. That is, such actions deny the competitive opportunities which are the reasonably expected effect of such commitments. However, we must also note that, while the overall burden of proof is on the complainant, we do not mean to introduce here a new requirement that a complainant affirmatively prove actual bad faith on the part of another Member. It is fairly clear from the history of disputes prior to the conclusion of the Uruguay Round that such a requirement was never established and there is no evidence in the current treaty text that such a requirement was newly imposed. Rather, the affirmative proof should be that measures have been taken that frustrate the object and purpose of the treaty and the reasonably expected benefits that flow therefrom.”(44)

32.     With reference to the case at hand, the Panel subsequently held that an error in treaty negotiation can also be addressed under Article 26 of the DSU and Article XXII:2 of the Agreement on Government Procurement:

“One of the issues that arises in this dispute is whether the concept of non-violation can arise in contexts other than the traditional approach represented by pacta sunt servanda. Can, for instance the question of error in treaty negotiation be addressed under Article 26 of the DSU and Article XXII:2 of the GPA? We see no reason why it cannot. Parties have an obligation to negotiate in good faith just as they must implement the treaty in good faith. It is clear to us (as discussed in paragraphs 7.110 and 7.121 below) that it is necessary that negotiations in the Agreement before us (the GPA) be conducted on a particularly open and forthcoming basis.

 

Thus, on the basis of the ample evidence provided by both parties to the dispute, we will review the claim of nullification or impairment raised by the United States within the framework of principles of international law which are generally applicable not only to performance of treaties but also to treaty negotiation.(45) To do otherwise potentially would leave a gap in the applicability of the law generally to WTO disputes and we see no evidence in the language of the WTO Agreements that such a gap was intended. If the non-violation remedy were deemed not to provide a relief for such problems as have arisen in the present case regarding good faith and error in the negotiation of GPA commitments (and one might add, in tariff and services commitments under other WTO Agreements), then nothing could be done about them within the framework of the WTO dispute settlement mechanism if general rules of customary international law on good faith and error in treaty negotiations were ruled not to be applicable.”(46)

33.     After examination of the facts of the case, the Panel on Korea — Procurement found that while Members had a “right to expect full and forthright answers to their questions submitted during negotiations”, they had to protect their own interests “as well”:

“Members have a right to expect full and forthright answers to their questions submitted during negotiations, particularly with respect to Schedules of affirmative commitments such as those appended to the GPA. However, Members must protect their own interests as well and in this case the United States did not do so. It had a significant amount of time to realize, particularly in light of the wide knowledge of KAA’s role, that its understanding of the Korean answer was not accurate. Therefore, we find that, even if the principles of a traditional non-violation case were applicable in this situation the United States has failed to carry its burden of proof to establish that it had reasonable expectations that a benefit had accrued.”(47)

34.     With regard to the possible error in treaty formation, the Panel held that it would consider “whether the United States was induced into error about a fact or situation which it assumed existed in the relation to the agreement being negotiated regarding Korea’s accession to the GPA”:

“[W]e […] first recall our finding that there is a particular duty of transparency and openness on the ‘offering’ party in negotiations on concessions under the GPA. The negotiations between the Parties under the GPA do not benefit from a generally accepted framework such as the Harmonized System with respect to goods or even the Central Product Classification in services. The Annexes to the GPA which contain the entities whose procurement is covered by the Agreement are basically self-styled Schedules whose interpretation may require extensive knowledge of another country’s procurement systems and governmental organization. Therefore, we believe that transparency and forthright provision of all relevant information are of the essence in negotiations on GPA Schedules.

 

In our view, as discussed fully in the previous section, Korea’s response to the US question was not as forthright as it should have been. Indeed, the response could be characterized as at best incomplete in light of existing Korean legislation and ongoing plans for further legislation. However, when addressing this problem, rather than asking whether there was a nullification or impairment of expectations arising from a concession, it might be better to inquire as to whether the United States was induced into error about a fact or situation which it assumed existed in the relation to the agreement being negotiated regarding Korea’s accession to the GPA. In this case, it clearly appears that the United States was in error when it assumed that the IIA project was covered by the GPA as a result of the entity coverage offered by Korea.”(48)

35.     The Panel noted that Article 48(1) of the Vienna Convention provides that “[a] State may invoke an error in a treaty as invalidating its consent to be bound by the treaty if the error related to a fact or situation which was assumed by that State to exist at the time when the treaty was concluded and formed an essential basis of its consent to be bound by the treaty”. The Panel then went on to recall that, in the course of the negotiations on the Annexes to the Agreement on Government Procurement:

“[T]he United States believed that the IIA project was covered. As we have found in section VII:B of these Findings, that was not correct. The IIA project procurement was the responsibility of a non-covered entity. Hence the US error related to a fact or situation which was assumed by the US to exist at the time when the treaty was concluded. In our view, it also appears from the behaviour of the United States that this purported concession arguably formed an essential basis of its consent to be bound by the treaty as finally agreed. Hence the initial conditions for error under Article 48(1) of the Vienna Convention seem to us to be satisfied.”(49)

36.     After making the finding referenced in paragraph 35 above, the Panel then turned to the second paragraph of Article 48, which states that “Paragraph 1 shall not apply if the State in question contributed by its own conduct to the error or if the circumstances were such as to put that State on notice of a possible error”. The Panel ultimately found that the United States error was not excusable:

“This raises the question of whether the exclusionary clause of the second paragraph of Article 48 can be overcome. Although we have indicated above that the duty to demonstrate good faith and transparency in GPA negotiations is particularly strong for the ‘offering’ party, this does not relieve the other negotiating partners from their duty of diligence to verify these offers as best as they can. Here again the facts already recounted in the previous sub-section demonstrate that the United States has not properly discharged this burden. We do not think the evidence at all supports a finding that the United States has contributed by its own conduct to the error, but given the elements mentioned earlier (such as the two and a half year interval between Korea’s answer to the US question and its final offer, the actions by the European Community in respect of Korea’s offer, the subsequent four-month period, of which at least one month was explicitly designated for verification, etc.), we conclude that the circumstances were such as to put the United States on notice of a possible error. Hence the error should not have subsisted at the end of the two and a half year gap, at the moment the accession of Korea was ‘concluded.’ Therefore, the error was no longer ‘excusable’ and only an excusable error can qualify as an error which may vitiate the consent to be bound by the agreement.”(50)

 

XXIV. Article XXIII     back to top

A. Text of Article XXIII

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.

 

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.


B. Interpretation and Application of Article XXIII

No jurisprudence or decision of a competent WTO body.

 

XXV. Article XXIV     back to top

A. Text of Article XXIV

Article XXIV: Final Provisions

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.

 

(footnote original) 8 For the purpose of this Agreement, the term “government” is deemed to include the competent authorities of the European Communities.

 

2.       Accession

 

          Any government which is a Member of the WTO, or prior to the date of entry into force of the WTO Agreement which is a contracting party to GATT 1947, and which is not a Party to this Agreement may accede to this Agreement on terms to be agreed between that government and the Parties. Accession shall take place by deposit with the Director-General of the WTO of an instrument of accession which states the terms so agreed. The Agreement shall enter into force for an acceding government on the 30th day following the date of its accession to the Agreement.(51)

 

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.

 

(footnote original) 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.

 

(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.


B. Interpretation and Application of Article XXIV

1. Article XXIV:2

37.     At its meeting of 27 February 1996, the Committee on Government Procurement adopted the Procedures for Accession to the Agreement.(52)

38.     In June 2000, with respect to the process of accession to the Agreement on Government Procurement, the Committee on Government Procurement adopted a Checklist of issues for the provision of information by applicant governments.(53) By way of streamlining the accession process, the Committee agreed to an Indicative Time-frame for Accession Negotiations and Arrangements for Reporting on the Progress of Work in document GPA/W/109/Rev.2.(54) On 2 June 2006, the Committee adopted a Decision on the Modalities of Accession to the GPA.(55)

2. Article XXIV:3

39.     At its meetings of 18 February and 25 June 1998, the Committee on Government Procurement discussed the legal and procedural aspects of the relationship of the Tokyo Round Agreement on Government Procurement to the 1994 Agreement on Government Procurement on the basis of a Note prepared by the Secretariat in response to the Committee’s request.(56)

3. Article XXIV:5

40.     At its meeting on 4 June 1996, the Committee on Government Procurement adopted the Procedures for the Notification of National Implementing Legislation.(57)

41.     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.(58)

4. Article XXIV:6

(a) General

42.     In accordance with the procedures established by the Committee on Government Procurement at its meeting of 24 February 1997(59), parties proposing to make rectifications and modifications to their appendices should notify them to the Committee in the form of relevant replacement or additional pages identifying the proposed changes to be inserted in the loose-leaf system for the Appendices to the Agreement that was established by the Committee at that time.(60)

43.     At its meeting of 23 April 2004, the Committee on Government Procurement adopted a Decision Pursuant to Article XXIV:6(a) of Agreement on Government Procurement(61), approving the modification to the Appendices of the European Communities proposed in document GPA/MOD/EEC/1. This modification resulted in the extension of coverage under the Agreement on Government Procurement to the ten new member States of the European Communities, i.e. Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia. Following the adoption of that decision, the European Communities made a statement clarifying the content of its modifications made in view of its enlargement.(62) The decision entered into force on 1 May 2004, on the same date as the enlargement of the European Communities to the above countries.

44.     At its meeting of 16 December 2004, the Committee on Government Procurement adopted a Decision pursuant to Article XXIV:6(a) of the Agreement on Government Procurement.(63) The Decision allows Israel to extend by one year the period to reduce its offsets from 30 to 20 per cent. Under its previous Note to Appendix I of the Agreement, Israel was authorized to require offsets in any form up to 30 per cent of the value of a contract until the end of 2004, and should have further reduced this level to 20 per cent of the value of a contract as of 1 January 2005. Based on Israel’s proposed modification to its Note to Appendix I,(64) and subsequent informal consultations with other parties, a draft Decision was submitted to, and adopted by, the Committee without further discussion. According to this Decision, Israel may extend by one year the period to reduce its offsets to 20 per cent, and shall submit a report concerning the implementation of its modified Note to Appendix I at the end of 2005.

45.     At its meeting of 21 December 2005, the Committee on Government Procurement adopted a second Decision Pursuant to Article XXIV:6(a) of the Agreement on Government Procurement(65) regarding Israel’s offset regime. The Decision allows Israel to keep but gradually reduce its offsets from 35 per cent of the contract going down to 30 per cent after five years, 28 per cent after ten years and 20 per cent after 13 years, beginning from the date Israel implements the Agreement. Furthermore, the Decision sets Israel’s thresholds for construction services across Annexes at 5,000,000 SDR during the period beginning from 1 January 2006 until 31 December 2008 and its permanent threshold at 8,500,000 SDR.

46.     At its meeting of 8 December 2006, the Committee on Government Procurement adopted a Decision Pursuant to Article XXIV:6(a) of the Agreement on Government Procurement(66), approving the modification to the Appendices of the European Communities proposed in document GPA/MOD/EEC/2. This modification resulted in the extension of coverage under the Agreement on Government Procurement to Bulgaria and Romania. Following the adoption of that decision, the European Communities made a statement clarifying the content of its modifications made in view of its enlargement.(67) The decision became effective on 1 January 2007, on the same date as the enlargement of the European Communities to the above countries.

(b) Meaning of “control” in Article XXIV:6(b)

47.     With respect to the term “control” in Article XXIV:6(b), the Panel in Korea — Procurement stated that “it is referring there to privatization. That is, it is used in the same manner as per the analysis in Canada — Dairy for determining whether an entity is “governmental” or not rather than for examining the relationship between entities.”(68)

5. Article XXIV:7

(a) Article XXIV:7(a): annual review

48.     Pursuant to Article XXIV:7(a), the Committee has reviewed annually the implementation and operation of the Agreement on Government Procurement, and has annually informed the General Council of the WTO of developments during the periods covered by such reviews. These reviews are available in the following documents: GPA/8 and GPA/8/Add.1 for 1996; GPA/19 for 1997; GPA/25 for 1998; GPA/30 for 1999; GPA/44 for 2000; GPA/58 for 2001; GPA/73 for 2002; GPA/75 for November 2002 to June 2003; GPA/82 for July 2003 to November 2004; GPA/85 for December 2004 to October 2005; GPA/89 for November 2005 to December 2006; GPA/92 for 2007; GPA/95 for 2008; GPA/103, GPA/103/Add.1 and GPA/103/Corr.1 for 2009; and GPA/106 for 2010.

(b) Article XXIV:7(b): further negotiations

49.     Pursuant to Article XXIV:7(b) and (c) of the Agreement, the Parties to the Agreement undertook further negotiations under the Agreement on Government Procurement.

50.     At the formal meeting of the Committee on Government Procurement on 8 December 2006, the Chairman reported that the negotiators had reached an understanding on the revision of the text of the 1994 Agreement on Government Procurement as contained in Job No. 6259, dated 8 December 2006 (circulated to all WTO Members as GPA/W/297). The agreement of the negotiators was provisional based on the following considerations:

  • First, the provisions of the text remained subject to a final legal check. In other words, rectifications of a purely formal character that do not affect the substance or meaning of the text might be needed. It would also be necessary to draw up and ensure the linguistic consistency of the texts in the other two WTO languages.
     
  • Secondly, it was subject to a mutually satisfactory outcome to the coverage negotiations. In other words, some negotiators might continue discussions on the relationship between certain aspects of the aforementioned text, in particular in relation to Annexes 2 and 3, and the coverage negotiations.(69)

51.     An updated version of the provisionally agreed revised text of the Agreement on Government Procurement was circulated on 16 December 2010 as WTO document GPA/W/313(70), along with the following introductory note:

“This document contains the text of the revision of the 1994 Agreement on Government Procurement (Articles I–XXI) following completion of the “legal check” and verification of the equivalency of the English, French and Spanish versions of the text. As with the previous version of the revised text (GPA/W/297 of 11 December 2006), adoption of the text contained herein is subject to the conditions outlined in paragraphs 2021 of the Committee’s 2006 Report to the General Council (GPA/89 of 11 December 2006). In particular, it should be noted that the final adoption of the text is subject to a mutually satisfactory outcome to the related negotiations on the coverage of the Agreement.

 

Article XXII of the revised Agreement (Final Provisions) remains subject to discussion by the negotiators and will be made available at a later date.” 

52.     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”.

(c) Article XXIV:7(c): elimination of discriminatory measures and practices

53.     At its meeting of 16 July 2004, the Committee on Government Procurement adopted a Decision on Modalities for the Negotiations on Extension of Coverage and Elimination of Discriminatory Measures and Practices.(71) According to this decision, the Committee as a whole will address the provisions in the draft revised text of the Agreement referred to as “market access issues”, as well as issues relating to the presentation and structure of the appendices to the Agreement. At the same time, negotiations on the extension of coverage of each Party’s Appendix I as well as on the elimination of discriminatory measures and practices in such Appendices will be largely pursued bilaterally but subject to monitoring by the Committee as a whole. On 21 July 2005, the Committee on Government Procurement adopted a further Decision on the subject, extending the deadlines for submission of initial offers and the negotiations in the light of the fact that the preparation of initial offers as called for by the Committee’s previous Decision required extensive research and internal consultation and, therefore, was taking longer than initially foreseen.(72)

6. Article XXIV:12

54.     In Korea — Procurement, the Panel stated that:

“Like GATT Article II:7 which refers to the tariff Schedules as “integral” parts of the Agreement, Article XXIV:12 of the GPA states that: “The Notes, Appendices and Annexes to this Agreement constitute an integral part thereof.” Thus, it follows that we should consider the Schedules appended to the GPA as treaty language. Accordingly, we will refer to the customary rules of interpretation of public international law as summarized in the Vienna Convention in order to interpret Korea’s GPA Schedule.”(73)

 

XXVI. Notes to the Agreement on Government Procurement     back to top

A. Text of the Notes

Notes

          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.


B. Interpretation and Application of the Notes

No jurisprudence or decision of a competent WTO body.

 

XXVII. Decision on Accession to the Agreement on Government Procurement     back to top

A. Text of the Decision

Decision on Accession to the Agreement on Government Procurement

1.       Ministers invite the Committee on Government Procurement established under the Agreement on Government Procurement in Annex 4(b) of the Agreement Establishing the World Trade Organization to clarify that:

 

(a)      a Member interested in accession according to paragraph 2 of Article XXIV of the Agreement on Government Procurement would communicate its interest to the Director-General of the WTO, submitting relevant information, including a coverage offer for incorporation in Appendix I having regard to the relevant provisions of the Agreement, in particular Article I and, where appropriate, Article V;

 

(b)     the communication would be circulated to Parties to the Agreement;

 

(c)     the Member interested in accession would hold consultations with the Parties on the terms for its accession to the Agreement;

 

(d)     with a view to facilitating accession, the Committee would establish a working party if the Member in question, or any of the Parties to the Agreement, so requests. The working party should examine: (i) the coverage offer made by the applicant Member; and (ii) relevant information pertaining to export opportunities in the markets of the Parties, taking into account the existing and potential export capabilities of the applicant Member and export opportunities for the Parties in the market of the applicant Member;

 

(e)     upon a decision by the Committee agreeing to the terms of accession including the coverage lists of the acceding Member, the acceding Member would deposit with the Director-General of the WTO an instrument of accession which states the terms so agreed. The acceding Member’s coverage lists in English, French and Spanish would be appended to the Agreement;

 

(f)     prior to the date of entry into force of the WTO Agreement, the above procedures would apply mutatis mutandis to contracting parties to the GATT 1947 interested in accession, and the tasks assigned to the Director-General of the WTO would be carried out by the Director- General to the CONTRACTING PARTIES to the GATT 1947.

 

2.       It is noted that Committee decisions are arrived at on the basis of consensus. It is also noted that the non-application clause of paragraph 11 of Article XXIV is available to any Party.”


B. Interpretation and Application of the Decision

No jurisprudence or decision of a competent WTO body.

 

XXVIII. Text of the Revision of the Agreement on Government Procurement as at 13 December 2010(74)

Preamble

     The Parties to this Agreement (hereinafter referred to as “the Parties”),

 

     Recognizing the need for an effective multilateral framework for government procurement, with a view to achieving greater liberalization and expansion of, and improving the framework for, the conduct of international trade;

 

     Recognizing that measures regarding government procurement should not be prepared, adopted or applied so as to afford protection to domestic suppliers, goods or services, or to discriminate among foreign suppliers, goods or services;

 

     Recognizing that the integrity and predictability of government procurement systems are integral to the efficient and effective management of public resources, the performance of the Parties’ economies and the functioning of the multilateral trading system;

 

     Recognizing that the procedural commitments under this Agreement should be sufficiently flexible to accommodate the specific circumstances of each Party;

 

     Recognizing the need to take into account the development, financial and trade needs of developing countries, in particular the least developed countries;

 

     Recognizing the importance of transparent measures regarding government procurement, of carrying out procurements in a transparent and impartial manner and of avoiding conflicts of interest and corrupt practices, in accordance with applicable international instruments, such as the United Nations Convention Against Corruption;

 

     Recognizing the importance of using, and encouraging the use of, electronic means for procurement covered by this Agreement;

 

     Desiring to encourage acceptance of and accession to this Agreement by WTO Members not party to it;

 

     Having undertaken further negotiations in pursuance of these objectives pursuant to Article XXIV:7(b) and (c) of the Agreement on Government Procurement done at Marrakesh on 15 April 1994 (hereinafter referred to as “the 1994 Agreement”); [N.B.: This provision is related to the final status of the Agreement.]

 

     Hereby agree as follows:

Article I Denitions

For purposes of this Agreement:

 

(a)     commercial goods or services means goods or services of a type generally sold or offered for sale in the commercial marketplace to, and customarily purchased by, non-governmental buyers for nongovernmental purposes;

 

(b)     Committee means the Committee on Government Procurement established by Article XXI:1;

 

(c)     construction service means a service that has as its objective the realization by whatever means of civil or building works, based on Division 51 of the United Nations Provisional Central Product Classification (CPC);

 

(d)     country includes any separate customs territory that is a Party to this Agreement. In the case of a separate customs territory that is a 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;

 

(e)     days means calendar days;

 

(f)     electronic auction means an iterative process that involves the use of electronic means for the presentation by suppliers of either new prices, or new values for quantifiable non-price elements of the tender related to the evaluation criteria, or both, resulting in a ranking or re ranking of tenders;

 

(g)      in writing or written means any worded or numbered expression that can be read, reproduced and later communicated. It may include electronically transmitted and stored information;

 

(h)     limited tendering means a procurement method whereby the procuring entity contacts a supplier or suppliers of its choice;

 

(i)     measure means any law, regulation, procedure, administrative guidance or practice, or any action of a procuring entity relating to a covered procurement;

 

(j)     multi-use list means a list of suppliers that a procuring entity has determined satisfy the conditions for participation in that list, and that the procuring entity intends to use more than once;

 

(k)     notice of intended procurement means a notice published by a procuring entity inviting interested suppliers to submit a request for participation, a tender, or both;

 

(l)     offset means any condition or undertaking that encourages local development or improves a Party’s balance-of-payments accounts, such as the use of domestic content, the licensing of technology, investment, counter trade and similar action or requirement;

 

(m)     open tendering means a procurement method whereby all interested suppliers may submit a tender;

 

(n)     person means a natural person or a juridical person;

 

(o)     procuring entity means an entity covered under a Party’s Annex 1, 2 or 3 to Appendix I;

 

(p)     qualified supplier means a supplier that a procuring entity recognizes as having satisfied the conditions for participation;

 

(q)     selective tendering means a procurement method whereby only qualified suppliers are invited by the procuring entity to submit a tender;

 

(r)     services includes construction services, unless otherwise specified;

 

(s)     standard means a document approved by a recognized body that provides for common and repeated use, rules, guidelines or characteristics for goods or services, or related processes and production methods, with which compliance is not mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements as they apply to a good, service, process or production method;

 

(t)     supplier means a person or group of persons that provides or could provide goods or services; and

 

(u)     technical specification means a tendering requirement that:

 

(i)     lays down the characteristics of goods or services to be procured, including quality, performance, safety and dimensions, or the processes and methods for their production or provision; or

 

(ii)     addresses terminology, symbols, packaging, marking or labelling requirements, as they apply to a good or service.

Article II Scope And Coverage

Application of Agreement

1.       This Agreement applies to any measure regarding covered procurement, whether or not it is conducted exclusively or partially by electronic means.

 

2.       For the purposes of this Agreement, covered procurement means procurement for governmental purposes:

 

(a)     of goods, services, or any combination thereof:

 

(i)     as specified in each Party’s annexes to Appendix I; and

 

(ii)     not procured with a view to commercial sale or resale, or for use in the production or supply of goods or services for commercial sale or resale;

 

(b)     by any contractual means, including: purchase; lease; and rental or hire purchase, with or without an option to buy;

 

(c)     for which the value, as estimated in accordance with paragraphs 6 through 8, equals or exceeds the relevant threshold specified in a Party’s annexes to Appendix I, at the time of publication of a notice in accordance with Article VII;

 

(d)     by a procuring entity; and

 

(e)     that is not otherwise excluded from coverage in paragraph 3 or a Party’s annexes to Appendix I.

 

3.       Except where provided otherwise in a Party’s annexes to Appendix I, this Agreement does not apply to:

 

(a)     the acquisition or rental of land, existing buildings or other immovable property or the rights thereon;

 

(b)     non-contractual agreements or any form of assistance that a Party provides, including cooperative agreements, grants, loans, equity infusions, guarantees and fiscal incentives;

 

(c)     the procurement or acquisition of fiscal agency or depository services, liquidation and management services for regulated financial institutions or services related to the sale, redemption and distribution of public debt, including loans and government bonds, notes and other securities;

 

(d)     public employment contracts;

 

(e)     procurement conducted:

 

(i)     for the specific purpose of providing international assistance, including development aid;

 

(ii)     under the particular procedure or condition of an international agreement relating to the stationing of troops or relating to the joint implementation by the signatory countries of a project; or

 

(iii)     under the particular procedure or condition of an international organization, or funded by international grants, loans or other assistance where the applicable procedure or condition would be inconsistent with this Agreement.

 

4.       Each Party shall specify the following information in its annexes to Appendix I:

 

(a)     in Annex 1, the central government entities whose procurement is covered by this Agreement;

 

(b)      in Annex 2, the sub-central government entities whose procurement is covered by this Agreement;

 

(c)     in Annex 3, all other entities whose procurement is covered by this Agreement;

 

(d)     in Annex 4, the goods covered by this Agreement;

 

(e)     in Annex 5, the services, other than construction services, covered by this Agreement;

 

(f)     in Annex 6, the construction services covered by this Agreement; and

 

(g)     in Annex 7, any General Notes.

 

5.       Where a procuring entity, in the context of covered procurement, requires persons not covered under a Party’s annexes to Appendix I to procure in accordance with particular requirements, Article IV shall apply mutatis mutandis to such requirements.

Valuation

6.       In estimating the value of a procurement for the purpose of ascertaining whether it is a covered procurement, a procuring entity shall:

 

(a)     neither divide a procurement into separate procurements nor select or use a particular valuation method for estimating the value of a procurement with the intention of totally or partially excluding it from the application of this Agreement; and

 

(b)     include the estimated maximum total value of the procurement over its entire duration, whether awarded to one or more suppliers, taking into account all forms of remuneration, including:

 

(i)     premiums, fees, commissions and interest; and

 

(ii)     where the procurement provides for the possibility of options, the total value of such options.

 

7.       Where an individual requirement for a procurement results in the award of more than one contract, or in the award of contracts in separate parts (hereinafter referred to as “recurring contracts”), the calculation of the estimated maximum total value shall be based on:

 

(a)     the value of recurring contracts of the same type of good or service awarded during the preceding 12 months or the procuring entity’s preceding fiscal year, adjusted, where possible, to take into account anticipated changes in the quantity or value of the good or service being procured over the following 12 months; or

 

(b)     the estimated value of recurring contracts of the same type of good or service to be awarded during the 12 months following the initial contract award or the procuring entity’s fiscal year.

 

8.       In the case of procurement by lease, rental or hire purchase of goods or services, or procurement for which a total price is not specified, the basis for valuation shall be:

 

(a)     in the case of a fixed-term contract:

 

(i)     where the term of the contract is 12 months or less, the total estimated maximum value for its duration; or

 

(ii)     where the term of the contract exceeds 12 months, the total estimated maximum value, including any estimated residual value;

 

(b)     where the contract is for an indefinite period, the estimated monthly instalment multiplied by 48; and

 

(c)     where it is not certain whether the contract is to be a fixed-term contract, subparagraph (b) shall be used.

 

Article III Security and General Exceptions

1.       Nothing in this Agreement shall be construed to prevent any Party from taking any action or not disclosing any information that 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 that would constitute a means of arbitrary or unjustifiable discrimination between Parties 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:

 

(a)     necessary to protect public morals, order or safety;

 

(b)     necessary to protect human, animal or plant life or health;

 

(c)     necessary to protect intellectual property; or

 

(d)     relating to goods or services of persons with disabilities, philanthropic institutions or prison labour.

 

Article IV General Principles

Non-Discrimination

1.       With respect to any measure regarding covered procurement, each Party, including its procuring entities, shall accord immediately and unconditionally to the goods and services of any other Party and to the suppliers of any other Party offering the goods or services of any Party, treatment no less favourable than the treatment the Party, including its procuring entities, accords to:

 

(a)     domestic goods, services and suppliers; and

 

(b)     goods, services and suppliers of any other Party.

 

2.       With respect to any measure regarding covered procurement, a Party, including its procuring entities, shall not:

 

(a)     treat a locally established supplier less favourably than another locally established supplier on the basis of the degree of foreign affiliation or ownership; or

 

(b)     discriminate against a locally established supplier on the basis that the goods or services offered by that supplier for a particular procurement are goods or services of any other Party.

 

Use of Electronic Means

3.       When conducting covered procurement by electronic means, a procuring entity shall:

 

(a)     ensure that the procurement is conducted using information technology systems and software, including those related to authentication and encryption of information, that are generally available and interoperable with other generally available information technology systems and software; and

 

(b)     maintain mechanisms that ensure the integrity of requests for participation and tenders, including establishment of the time of receipt and the prevention of inappropriate access.

 

Conduct of Procurement

4.       A procuring entity shall conduct covered procurement in a transparent and impartial manner that:

 

(a)     is consistent with this Agreement, using methods such as open tendering, selective tendering and limited tendering;

 

(b)     avoids conflicts of interest; and

 

(c)     prevents corrupt practices.

 

Rules of Origin

5.        For purposes of covered procurement, a Party shall not apply rules of origin to goods or services imported from or supplied from another Party that are different from the rules of origin the Party applies at the same time in the normal course of trade to imports or supplies of the same goods or services from the same Party.

Offsets

6.       With regard to covered procurement, a Party, including its procuring entities, shall not seek, take account of, impose or enforce any offset.

Measures Not Specific to Procurement

7.       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 or formalities and measures affecting trade in services other than measures governing covered procurement.

Article V Developing Countries

1.       In negotiations on accession to, and in the implementation and administration of, this Agreement, the Parties shall give special consideration to the development, financial and trade needs and circumstances of developing countries and least developed countries (collectively referred to hereinafter as “developing countries”, unless specifically identified otherwise), recognizing that these may differ significantly from country to country. As provided for in this Article and on request, the Parties shall accord special and differential treatment to:

 

(a)     least developed countries; and

 

(b)     any other developing country, where and to the extent that this special and differential treatment meets its development needs.

 

2.       Upon accession by a developing country to this Agreement, each Party shall provide immediately to the goods, services and suppliers of that country the most favourable coverage that the Party provides under its annexes to Appendix I to any other Party to this Agreement, subject to any terms negotiated between the Party and the developing country in order to maintain an appropriate balance of opportunities under this Agreement.

 

3.       Based on its development needs, and with the agreement of the Parties, a developing country may adopt or maintain one or more of the following transitional measures, during a transition period and in accordance with a schedule, set out in its relevant annexes to Appendix I, and applied in a manner that does not discriminate among the other Parties:

 

(a)     a price preference programme, provided that the programme:

 

(i)     provides a preference only for the part of the tender incorporating goods or services originating in the developing country applying the preference or goods or services originating in other developing countries in respect of which the developing country applying the preference has an obligation to provide national treatment under a preferential agreement, provided that where the other developing country is a Party to this Agreement, such treatment would be subject to any conditions set by the Committee; and

 

(ii)     is transparent, and the preference and its application in the procurement are clearly described in the notice of intended procurement;

 

(b)     an offset, provided that any requirement for, or consideration of, the imposition of the offset is clearly stated in the notice of intended procurement;

 

(c)     the phased-in addition of specific entities or sectors; and

 

(d)     a threshold that is higher than its permanent threshold.

 

4.       In negotiations on accession to this Agreement, the Parties may agree to the delayed application of any specific obligation in this Agreement, other than Article IV:1(b), by the acceding developing country while that country implements the obligation. The implementation period shall be:

 

(a)     for a least developed country, five years after its accession to this Agreement; and

 

(b)     for any other developing country, only the period necessary to implement the specific obligation and not to exceed three years.

 

5.       Any developing country that has negotiated an implementation period for an obligation under paragraph 4 shall list in its Annex 7 to Appendix I the agreed implementation period, the specific obligation subject to the implementation period and any interim obligation with which it has agreed to comply during the implementation period.

 

6.       After this Agreement has entered into force for a developing country, the Committee, on request of the developing country, may:

 

(a)     extend the transition period for a measure adopted or maintained under paragraph 3 or any implementation period negotiated under paragraph 4; or

 

(b)     approve the adoption of a new transitional measure under paragraph 3, in special circumstances that were unforeseen during the accession process.

 

7.       A developing country that has negotiated a transitional measure under paragraph 3 or 6, an implementation period under paragraph 4 or any extension under paragraph 6 shall take such steps during the transition period or implementation period as may be necessary to ensure that it is in compliance with this Agreement at the end of any such period. The developing country shall promptly notify the Committee of each step.

 

8.       The Parties shall give due consideration to any request by a developing country for technical cooperation and capacity building in relation to that country’s accession to, or implementation of, this Agreement.

 

9.       The Committee may develop procedures for the implementation of this Article. Such procedures may include provisions for voting on decisions relating to requests under paragraph 6.

 

10.       The Committee shall review the operation and effectiveness of this Article every five years.

 

Article VI Information on the Procurement System

1.       Each Party shall:

 

(a)     promptly publish any law, regulation, judicial decision, administrative ruling of general application, standard contract clause mandated by law or regulation and incorporated by reference in notices or tender documentation and procedure regarding covered procurement, and any modifications thereof, in an officially designated electronic or paper medium that is widely disseminated and remains readily accessible to the public; and

 

(b)     provide an explanation thereof to any Party, on request.

 

2.       Each Party shall list:

 

(a)     in Appendix II, the electronic or paper media in which the Party publishes the information described in paragraph 1;

 

(b)     in Appendix III, the electronic or paper media in which the Party publishes the notices required by Articles VII, IX:7 and XVI:2; and

 

(c)     in Appendix IV, the website address or addresses where the Party publishes:

 

(i)     its procurement statistics pursuant to Article XVI:5; or

 

(ii)     its notices concerning awarded contracts pursuant to Article XVI:6.

 

3.       Each Party shall promptly notify the Committee of any modification to the Party’s information listed in Appendix II, III or IV.

Article VII Notices

Notice of Intended Procurement

1.       For each covered procurement, a procuring entity shall publish a notice of intended procurement in the appropriate paper or electronic medium listed in Appendix III, except in the circumstances described in Article XIII. Such medium shall be widely disseminated and such notices shall remain readily accessible to the public, at least until expiration of the time-period indicated in the notice. The notices shall:

 

(a)     for procuring entities covered under Annex 1, be accessible by electronic means free of charge through a single point of access, for at least any minimum period of time specified in Appendix III; and

 

(b)     for procuring entities covered under Annex 2 or 3, where accessible by electronic means, be provided, at least, through links in a gateway electronic site that is accessible free of charge.

 

Parties, including their procuring entities covered under Annex 2 or 3, are encouraged to publish their notices by electronic means free of charge through a single point of access.

 

2.       Except as otherwise provided in this Agreement, each notice of intended procurement shall include:

 

(a)     the name and address of the procuring entity and other information necessary to contact the procuring entity and obtain all relevant documents relating to the procurement, and their cost and terms of payment, if any;

 

(b)     a description of the procurement, including the nature and the quantity of the goods or services to be procured or, where the quantity is not known, the estimated quantity;

 

(c)     for recurring contracts, an estimate, if possible, of the timing of subsequent notices of intended procurement;

 

(d)     a description of any options;

 

(e)     the time-frame for delivery of goods or services or the duration of the contract;

 

(f)     the procurement method that will be used and whether it will involve negotiation or electronic auction;

 

(g)     where applicable, the address and any final date for the submission of requests for participation in the procurement;

 

(h)     the address and the final date for the submission of tenders;

 

(i)     the language or languages in which tenders or requests for participation may be submitted, if they may be submitted in a language other than an official language of the Party of the procuring entity;

 

(j)     a list and brief description of any conditions for participation of suppliers, including any requirements for specific documents or certifications to be provided by suppliers in connection therewith, unless such requirements are included in tender documentation that is made available to all interested suppliers at the same time as the notice of intended procurement;

 

(k)     where, pursuant to Article IX, a procuring entity intends to select a limited number of qualified suppliers to be invited to tender, the criteria that will be used to select them and, where applicable, any limitation on the number of suppliers that will be permitted to tender; and

 

(l)     an indication that the procurement is covered by this Agreement.

 

Summary Notice

3.       For each case of intended procurement, a procuring entity shall publish a summary notice that is readily accessible, at the same time as the publication of the notice of intended procurement, in one of the WTO languages. The summary notice shall contain at least the following information:

 

(a)     the subject-matter of the procurement;

 

(b)     the final date for the submission of tenders or, where applicable, any final date for the submission of requests for participation in the procurement or for inclusion on a multi-use list; and

 

(c)     the address from which documents relating to the procurement may be requested.

 

Notice of Planned Procurement

4.       Procuring entities are encouraged to publish in the appropriate paper or electronic medium listed in Appendix III as early as possible in each fiscal year a notice regarding their future procurement plans (hereinafter referred to as “notice of planned procurement”). The notice of planned procurement should include the subject-matter of the procurement and the planned date of the publication of the notice of intended procurement.

 

5.       A procuring entity covered under Annex 2 or 3 may use a notice of planned procurement as a notice of intended procurement provided that the notice of planned procurement includes as much of the information referred to in paragraph 2 as is available to the entity and a statement that interested suppliers should express their interest in the procurement to the procuring entity.

Article VIII Conditions for Participation

1.       A procuring entity shall limit any conditions for participation in a procurement to those that are essential to ensure that a supplier has the legal and financial capacities and the commercial and technical abilities to undertake the relevant procurement.

 

2.       In establishing the conditions for participation, a procuring entity:

 

(a)     shall not impose the condition that, in order for a supplier to participate in a procurement, the supplier has previously been awarded one or more contracts by a procuring entity of a given Party; and

 

(b)     may require relevant prior experience where essential to meet the requirements of the procurement.

 

3.       In assessing whether a supplier satisfies the conditions for participation, a procuring entity:

 

(a)     shall evaluate the financial capacity and the commercial and technical abilities of a supplier on the basis of that supplier’s business activities both inside and outside the territory of the Party of the procuring entity; and

 

(b)     shall base its evaluation on the conditions that the procuring entity has specified in advance in notices or tender documentation.

 

4.       Where there is supporting evidence, a Party, including its procuring entities, may exclude a supplier on grounds such as:

 

(a)     bankruptcy;

 

(b)     false declarations;

 

(c)     significant or persistent deficiencies in performance of any substantive requirement or obligation under a prior contract or contracts;

 

(d)     final judgments in respect of serious crimes or other serious offences;

 

(e)     professional misconduct or acts or omissions that adversely reflect on the commercial integrity of the supplier; or

 

(f)     failure to pay taxes.

 

Article IX Qualication of Suppliers

Registration Systems and Qualification Procedures

1.       A Party, including its procuring entities, may maintain a supplier registration system under which interested suppliers are required to register and provide certain information.

 

2.       Each Party shall ensure that:

 

(a)     its procuring entities make efforts to minimize differences in their qualification procedures; and

 

(b)     where its procuring entities maintain registration systems, the entities make efforts to minimize differences in their registration systems.

 

3.       A Party, including its procuring entities, shall not adopt or apply any registration system or qualification procedure with the purpose or the effect of creating unnecessary obstacles to the participation of suppliers of another Party in its procurement.

Selective Tendering

4.       Where a procuring entity intends to use selective tendering, the entity shall:

 

(a)     include in the notice of intended procurement at least the information specified in Article VII:2 (a),, (f), (g), (j), (k) and (l) and invite suppliers to submit a request for participation; and

 

(b)     provide, by the commencement of the time-period for tendering, at least the information in Article VII:2 (c), (d), (e), (h) and (i) to the qualified suppliers that it notifies as specified in Article XI:3(b).

 

5.       A procuring entity shall allow all qualified suppliers to participate in a particular procurement, unless the procuring entity states in the notice of intended procurement any limitation on the number of suppliers that will be permitted to tender and the criteria for selecting the limited number of suppliers.

 

6.       Where the tender documentation is not made publicly available from the date of publication of the notice referred to in paragraph 4, a procuring entity shall ensure that those documents are made available at the same time to all the qualified suppliers selected in accordance with paragraph 5.

Multi-Use Lists

7.       A procuring entity may maintain a multi-use list of suppliers, provided that a notice inviting interested suppliers to apply for inclusion on the list is:

 

(a)     published annually; and

 

(b)     where published by electronic means, made available continuously,

 

in the appropriate medium listed in Appendix III.

 

8.       The notice provided for in paragraph 7 shall include:

 

(a)     a description of the goods or services, or categories thereof, for which the list may be used;

 

(b)     the conditions for participation to be satisfied by suppliers for inclusion on the list and the methods that the procuring entity will use to verify that a supplier satisfies the conditions;

 

(c)     the name and address of the procuring entity and other information necessary to contact the entity and obtain all relevant documents relating to the list;

 

(d)     the period of validity of the list and the means for its renewal or termination, or where the period of validity is not provided, an indication of the method by which notice will be given of the termination of use of the list; and

 

(e)     an indication that the list may be used for procurement covered by this Agreement.

 

9.       Notwithstanding paragraph 7, where a multi-use list will be valid for three years or less, a procuring entity may publish the notice referred to in paragraph 7 only once, at the beginning of the period of validity of the list, provided that the notice:

 

(a)     states the period of validity and that further notices will not be published; and

 

(b)     is published by electronic means and is made available continuously during the period of its validity.

 

10.      A procuring entity shall allow suppliers to apply at any time for inclusion on a multi-use list and shall include on the list all qualified suppliers within a reasonably short time.

 

11.      Where a supplier that is not included on a multi-use list submits a request for participation in a procurement based on a multi-use list and all required documents, within the time period provided for in Article XI:2, a procuring entity shall examine the request. The procuring entity shall not exclude the supplier from consideration in respect of the procurement on the grounds that the entity has insufficient time to examine the request, unless, in exceptional cases, due to the complexity of the procurement, the entity is not able to complete the examination of the request within the time period allowed for the submission of tenders.

 

Annex 2 and Annex 3 Entities

12.      A procuring entity covered under Annex 2 or 3 may use a notice inviting suppliers to apply for inclusion on a multi-use list as a notice of intended procurement, provided that:

 

(a)     the notice is published in accordance with paragraph 7 and includes the information required under paragraph 8, as much of the information required under Article VII:2 as is available and a statement that it constitutes a notice of intended procurement or that only the suppliers on the multi use list will receive further notices of procurement covered by the multi-use list; and

 

(b)     the entity promptly provides to suppliers that have expressed an interest in a given procurement to the entity, sufficient information to permit them to assess their interest in the procurement, including all remaining information required in Article VII:2, to the extent such information is available.

 

13.      A procuring entity covered under Annex 2 or 3 may allow a supplier that has applied for inclusion on a multi-use list in accordance with paragraph 10 to tender in a given procurement, where there is sufficient time for the procuring entity to examine whether the supplier satisfies the conditions for participation.

Information on Procuring Entity Decisions

14.      A procuring entity shall promptly inform any supplier that submits a request for participation in a procurement or application for inclusion on a multi-use list of the procuring entity’s decision with respect to the request or application.

 

15.      Where a procuring entity rejects a supplier’s request for participation in a procurement or application for inclusion on a multi-use list, ceases to recognize a supplier as qualified, or removes a supplier from a multiuse list, the entity shall promptly inform the supplier and, on request of the supplier, promptly provide the supplier with a written explanation of the reasons for its decision.

Article X Technical Specications and Tender Documentation

Technical Specifications

1.       A procuring entity shall not prepare, adopt or apply any technical specification or prescribe any conformity assessment procedure with the purpose or the effect of creating unnecessary obstacles to international trade.

 

2.       In prescribing the technical specifications for the goods or services being procured, a procuring entity shall, where appropriate:

 

(a)     set out the technical specification in terms of performance and functional requirements, rather than design or descriptive characteristics; and

 

(b)     base the technical specification on international standards, where such exist; otherwise, on national technical regulations, recognized national standards or building codes.

 

3.       Where design or descriptive characteristics are used in the technical specifications, a procuring entity should indicate, where appropriate, that it will consider tenders of equivalent goods or services that demonstrably fulfil the requirements of the procurement by including words such as “or equivalent” in the tender documentation.

 

4.       A procuring entity shall not prescribe technical specifications that require or refer to a particular trademark or trade name, patent, copyright, design, type, specific origin, producer or supplier, unless there is no other sufficiently precise or intelligible way of describing the procurement requirements and provided that, in such cases, the entity includes words such as “or equivalent” in the tender documentation.

 

5.       A procuring entity shall not seek or accept, in a manner that would have the effect of precluding competition, advice that may be used in the preparation or adoption of any technical specification for a specific procurement from a person that may have a commercial interest in the procurement.

 

6.       For greater certainty, a Party, including its procuring entities, may, in accordance with this Article, prepare, adopt or apply technical specifications to promote the conservation of natural resources or protect the environment.

 

Tender Documentation

7.       A procuring entity shall make available to suppliers tender documentation that includes all information necessary to permit suppliers to prepare and submit responsive tenders. Unless already provided in the notice of intended procurement, such documentation shall include a complete description of:

 

(a)     the procurement, including the nature and the quantity of the goods or services to be procured or, where the quantity is not known, the estimated quantity and any requirements to be fulfilled, including any technical specifications, conformity assessment certification, plans, drawings or instructional materials;

 

(b)     any conditions for participation of suppliers, including a list of information and documents that suppliers are required to submit in connection with the conditions for participation;

 

(c)     all evaluation criteria the entity will apply in the awarding of the contract, and, except where price is the sole criterion, the relative importance of such criteria;

 

(d)     where the procuring entity will conduct the procurement by electronic means, any authentication and encryption requirements or other requirements related to the submission of information by electronic means;

 

(e)     where the procuring entity will hold an electronic auction, the rules, including identification of the elements of the tender related to the evaluation criteria, on which the auction will be conducted;

 

(f)     where there will be a public opening of tenders, the date, time and place for the opening and, where appropriate, the persons authorized to be present;

 

(g)     any other terms or conditions, including terms of payment and any limitation on the means by which tenders may be submitted, such as whether on paper or by electronic means; and

 

(h)     any dates for the delivery of goods or the supply of services.

 

8.       In establishing any date for the delivery of goods or the supply of services being procured, a procuring entity shall take into account such factors as the complexity of the procurement, the extent of subcontracting anticipated and the realistic time required for production, de-stocking and transport of goods from the point of supply or for supply of services.

 

9.       The evaluation criteria set out in the notice of intended procurement or tender documentation may include, among others, price and other cost factors, quality, technical merit, environmental characteristics and terms of delivery.

 

10.      A procuring entity shall promptly:

 

(a)     make available tender documentation to ensure that interested suppliers have sufficient time to submit responsive tenders;

 

(b)     provide, on request, the tender documentation to any interested supplier; and

 

(c)     reply to any reasonable request for relevant information by any interested or participating supplier, provided that such information does not give that supplier an advantage over other suppliers.

 

Modifications

11.      Where, prior to the award of a contract, a procuring entity modifies the criteria or requirements set out in the notice of intended procurement or tender documentation provided to participating suppliers, or amends or reissues a notice or tender documentation, it shall transmit in writing all such modifications or amended or re-issued notice or tender documentation:

 

(a)     to all suppliers that are participating at the time of the modification, amendment or re issuance, where such suppliers are known to the entity, and in all other cases, in the same manner as the original information was made available; and

 

(b)     in adequate time to allow such suppliers to modify and re-submit amended tenders, as appropriate.

Article XI Time-Periods

General

1.       A procuring entity shall, consistent with its own reasonable needs, provide sufficient time for suppliers to prepare and submit requests for participation and responsive tenders, taking into account such factors as:

 

(a)     the nature and complexity of the procurement;

 

(b)     the extent of subcontracting anticipated; and

 

(c)     the time necessary for transmitting tenders by non-electronic means from foreign as well as domestic points where electronic means are not used.

 

Such time-periods, including any extension of the time-periods, shall be the same for all interested or participating suppliers.

Deadlines

2.       A procuring entity that uses selective tendering shall establish that the final date for the submission of requests for participation shall not, in principle, be less than 25 days from the date of publication of the notice of intended procurement. Where a state of urgency duly substantiated by the procuring entity renders this time-period impracticable, the time-period may be reduced to not less than 10 days.

 

3.       Except as provided for in paragraphs 4, 5, 7 and 8 a procuring entity shall establish that the final date for the submission of tenders shall not be less than 40 days from the date on which:

 

(a)     in the case of open tendering, the notice of intended procurement is published; or

 

(b)     in the case of selective tendering, the entity notifies suppliers that they will be invited to submit tenders, whether or not it uses a multiuse list.

 

4.       A procuring entity may reduce the time-period for tendering established in accordance with paragraph 3 to not less than 10 days where:

(a)     the procuring entity has published a notice of planned procurement as described in Article VII:4 at least 40 days and not more than 12 months in advance of the publication of the notice of intended procurement, and the notice of planned procurement contains:

 

(i)     a description of the procurement;

 

(ii)     the approximate final dates for the submission of tenders or requests for participation;

 

(iii)     a statement that interested suppliers should express their interest in the procurement to the procuring entity;

 

(iv)     the address from which documents relating to the procurement may be obtained; and

 

(v)     as much of the information that is required for the notice of intended procurement under Article VII:2, as is available;

 

(b)     the procuring entity, for recurring contracts, indicates in an initial notice of intended procurement that subsequent notices will provide time-periods for tendering based on this paragraph; or

 

(c)     a state of urgency duly substantiated by the procuring entity renders the time-period for tendering established in accordance with paragraph 3 impracticable.

 

5.       A procuring entity may reduce the time-period for tendering established in accordance with paragraph 3 by five days for each one of the following circumstances:

 

(a)     the notice of intended procurement is published by electronic means;

 

(b)     all the tender documentation is made available by electronic means from the date of the publication of the notice of intended procurement; and

 

(c)     the entity accepts tenders by electronic means.

 

6.       The use of paragraph 5, in conjunction with paragraph 4, shall in no case result in the reduction of the time-period for tendering established in accordance with paragraph 3 to less than 10 days from the date on which the notice of intended procurement is published.

 

7.       Notwithstanding any other provision in this Article, where a procuring entity purchases commercial goods or services, or any combination thereof, it may reduce the time-period for tendering established in accordance with paragraph 3 to not less than 13 days, provided that it publishes by electronic means, at the same time, both the notice of intended procurement and the tender documentation. In addition, where the entity accepts tenders for commercial goods or services by electronic means, it may reduce the time-period established in accordance with paragraph 3 to not less than 10 days.

 

8.       Where a procuring entity covered under Annex 2 or 3 has selected all or a limited number of qualified suppliers, the time-period for tendering may be fixed by mutual agreement between the procuring entity and the selected suppliers. In the absence of agreement, the period shall not be less than 10 days.

 

Article XII Negotiation

1.        A Party may provide for its procuring entities to conduct negotiations:

 

(a)     where the entity has indicated its intent to conduct negotiations in the notice of intended procurement required under Article VII:2; or

 

(b)     where it appears from the evaluation that no tender is obviously the most advantageous in terms of the specific evaluation criteria set out in the notice of intended procurement or tender documentation.

 

2.       A procuring entity shall:

 

(a)     ensure that any elimination of suppliers participating in negotiations is carried out in accordance with the evaluation criteria set out in the notice of intended procurement or tender documentation; and

 

(b)     where negotiations are concluded, provide a common deadline for the remaining participating suppliers to submit any new or revised tenders.

 

Article XIII Limited Tendering

1.       Provided that it does not use this provision for the purpose of avoiding competition among suppliers or in a manner that discriminates against suppliers of any other Party or protects domestic suppliers, a procuring entity may use limited tendering and may choose not to apply Articles VII through IX, X (paragraphs 7 through 11), XI, XII, XIV and XV only under any of the following circumstances:

 

(a)     where:

 

(i)     no tenders were submitted or no suppliers requested participation;

 

(ii)     no tenders that conform to the essential requirements of the tender documentation were submitted;

 

(iii)     no suppliers satisfied the conditions for participation; or

 

(iv)     the tenders submitted have been collusive, provided that the requirements of the tender documentation are not substantially modified;

 

(b)     where the goods or services can be supplied only by a particular supplier and no reasonable alternative or substitute goods or services exist for any of the following reasons:

 

(i)     the requirement is for a work of art;

 

(ii)     the protection of patents, copyrights or other exclusive rights; or

 

(iii)     due to an absence of competition for technical reasons;

 

(c)     for additional deliveries by the original supplier of goods or services that were not included in the initial procurement where a change of supplier for such additional goods or services:

 

(i)     cannot be made for economic or technical reasons such as requirements of interchangeability or interoperability with existing equipment, software, services or installations procured under the initial procurement; and

 

(ii)     would cause significant inconvenience or substantial duplication of costs for the procuring entity;

 

(d)     insofar as is strictly necessary where, for reasons of extreme urgency brought about by events unforeseeable by the procuring entity, the goods or services could not be obtained in time using open tendering or selective tendering;

 

(e)     for goods purchased on a commodity market;

 

(f)     where a procuring entity procures a prototype or a first good or service that is developed at its request in the course of, and for, a particular contract for research, experiment, study or original development. Original development of a first good or service may include limited production or supply in order to incorporate the results of field testing and to demonstrate that the good or service is suitable for production or supply in quantity to acceptable quality standards, but does not include quantity production or supply to establish commercial viability or to recover research and development costs;

 

(g)     for purchases made under exceptionally advantageous conditions that only arise in the very short term in the case of unusual disposals such as those arising from liquidation, receivership or bankruptcy, but not for routine purchases from regular suppliers; or

 

(h)     where a contract is awarded to a winner of a design contest provided that:

 

(i)     the contest has been organized in a manner that is consistent with the principles of this Agreement, in particular relating to the publication of a notice of intended procurement; and

 

(ii)     the participants are judged by an independent jury with a view to a design contract being awarded to a winner.

 

2.       A procuring entity shall prepare a report in writing on each contract awarded under paragraph 1. The report shall include the name of the procuring entity, the value and kind of goods or services procured and a statement indicating the circumstances and conditions described in paragraph 1 that justified the use of limited tendering.

 

Article XIV Electronic Auctions

Where a procuring entity intends to conduct a covered procurement using an electronic auction, the entity shall provide each participant, before commencing the electronic auction, with:

 

(a)     the automatic evaluation method, including the mathematical formula, that is based on the evaluation criteria set out in the tender documentation and that will be used in the automatic ranking or re-ranking during the auction;

 

(b)     the results of any initial evaluation of the elements of its tender where the contract is to be awarded on the basis of the most advantageous tender; and

 

(c)     any other relevant information relating to the conduct of the auction.

 

Article XV Treatment of Tenders and Awarding of Contracts

Treatment of Tenders

 

1.       A procuring entity shall receive, open and treat all tenders under procedures that guarantee the fairness and impartiality of the procurement process, and the confidentiality of tenders.

 

2.       A procuring entity shall not penalize any supplier whose tender is received after the time specified for receiving tenders if the delay is due solely to mishandling on the part of the procuring entity.

 

3.       Where a procuring entity provides a supplier with an opportunity to correct unintentional errors of form between the opening of tenders and the awarding of the contract, the procuring entity shall provide the same opportunity to all participating suppliers.

 

Awarding of Contracts

 

4.       To be considered for an award, a tender shall be submitted in writing and shall, at the time of opening, comply with the essential requirements set out in the notices and tender documentation and be from a supplier that satisfies the conditions for participation.

 

5.       Unless a procuring entity determines that it is not in the public interest to award a contract, the entity shall award the contract to the supplier that the entity has determined to be capable of fulfilling the terms of the contract and that, based solely on the evaluation criteria specified in the notices and tender documentation, has submitted:

 

(a)     the most advantageous tender; or

 

(b)     where price is the sole criterion, the lowest price.

 

6.       Where a procuring entity receives a tender with a price that is abnormally lower than the prices in other tenders submitted, it may verify with the supplier that it satisfies the conditions for participation and is capable of fulfilling the terms of the contract.

 

7.       A procuring entity shall not use options, cancel a procurement or modify awarded contracts in a manner that circumvents the obligations under this Agreement.

 

Article XVI Transparency of Procurement Information

Information Provided to Suppliers

 

1.       A procuring entity shall promptly inform participating suppliers of the entity’s contract award decisions and, on the request of a supplier, shall do so in writing. Subject to paragraphs 2 and 3 of Article XVII, a procuring entity shall, on request, provide an unsuccessful supplier with an explanation of the reasons why the entity did not select its tender and the relative advantages of the successful supplier’s tender.

 

Publication of Award Information

 

2.       Not later than 72 days after the award of each contract covered by this Agreement, a procuring entity shall publish a notice in the appropriate paper or electronic medium listed in Appendix III. Where the entity publishes the notice only in an electronic medium, the information shall remain readily accessible for a reasonable period of time. The notice shall include at least the following information:

 

(a)     a description of the goods or services procured;

 

(b)     the name and address of the procuring entity;

 

(c)     the name and address of the successful supplier;

 

(d)     the value of the successful tender or the highest and lowest offers taken into account in the award of the contract;

 

(e)     the date of award; and

 

(f)     the type of procurement method used, and in cases where limited tendering was used in accordance with Article XIII, a description of the circumstances justifying the use of limited tendering.

 

Maintenance of Documentation, Reports and Electronic Traceability

 

3.       Each procuring entity shall, for a period of at least three years from the date it awards a contract, maintain:

 

(a)     the documentation and reports of tendering procedures and contract awards relating to covered procurement, including the reports required under Article XIII; and

 

(b)     data that ensure the appropriate traceability of the conduct of covered procurement by electronic means.

 

Collection and Reporting of Statistics

 

4.       Each Party shall collect and report to the Committee statistics on its contracts covered by this Agreement. Each report shall cover one year and be submitted within two years of the end of the reporting period, and shall contain:

 

(a)     for Annex 1 procuring entities:

 

(i)     the number and total value, for all such entities, of all contracts covered by this Agreement;

 

(ii)     the number and total value of all contracts covered by this Agreement awarded by each such entity, broken down by categories of goods and services according to an internationally recognized uniform classification system; and

 

(iii)     the number and total value of all contracts covered by this Agreement awarded by each such entity under limited tendering;

 

(b)     for Annex 2 and 3 procuring entities, the number and total value of contracts covered by this Agreement awarded by all such entities, broken down by Annex; and

 

(c)     estimates for the data required under subparagraphs (a) and (b), with an explanation of the methodology used to develop the estimates, where it is not feasible to provide the data.

 

5.       Where a Party publishes its statistics on an official website, in a manner that is consistent with the requirements of paragraph 4, the Party may substitute a notification to the Committee of the website address for the submission of the data under paragraph 4, with any instructions necessary to access and use such statistics.

 

6.       Where a Party requires notices concerning awarded contracts, pursuant to paragraph 2, to be published electronically and where such notices are accessible to the public through a single database in a form permitting analysis of the covered contracts, the Party may substitute a notification to the Committee of the website address for the submission of the data under paragraph 4, with any instructions necessary to access and use such data.

 

Article XVII Disclosure of Information

Provision of Information to Parties

 

1.       On request of any other Party, a Party shall provide promptly any information necessary to determine whether a procurement was conducted fairly, impartially and in accordance with this Agreement, including information on the characteristics and relative advantages of the successful tender. In cases where release of the information would prejudice competition in future tenders, the Party that receives the information shall not disclose it to any supplier, except after consulting with, and obtaining the agreement of, the Party that provided the information.

 

Non-Disclosure of Information

 

2.       Notwithstanding any other provision of this Agreement, a Party, including its procuring entities, shall not provide to any particular supplier information that might prejudice fair competition between suppliers.

 

3.       Nothing in this Agreement shall be construed to require a Party, including its procuring entities, authorities and review bodies, to disclose confidential information where disclosure:

 

(a)     would impede law enforcement;

 

(b)     might prejudice fair competition between suppliers;

 

(c)     would prejudice the legitimate commercial interests of particular persons, including the protection of intellectual property; or

 

(d)     would otherwise be contrary to the public interest.

 

Article XVIII Domestic Review Procedures

1.       Each Party shall provide a timely, effective, transparent and non-discriminatory administrative or judicial review procedure through which a supplier may challenge:

 

(a)     a breach of the Agreement; or

 

(b)     where the supplier does not have a right to challenge directly a breach of the Agreement under the domestic law of a Party, a failure to comply with a Party’s measures implementing this Agreement,

 

arising in the context of a covered procurement, in which the supplier has, or has had, an interest. The procedural rules for all challenges shall be in writing and made generally available.

 

2.       In the event of a complaint by a supplier, arising in the context of covered procurement in which the supplier has, or has had, an interest, that there has been a breach or a failure as referred to in paragraph 1, the Party of the procuring entity conducting the procurement shall encourage the entity and the supplier to seek resolution of the complaint through consultations. The entity shall accord impartial and timely consideration to any such complaint in a manner that is not prejudicial to the supplier’s participation in ongoing or future procurement or its right to seek corrective measures under the administrative or judicial review procedure.

 

3.       Each supplier shall be allowed a sufficient period of time to prepare and submit a challenge, which in no case shall be less than 10 days from the time when the basis of the challenge became known or reasonably should have become known to the supplier.

 

4.       Each Party shall establish or designate at least one impartial administrative or judicial authority that is independent of its procuring entities to receive and review a challenge by a supplier arising in the context of a covered procurement.

 

5.       Where a body other than an authority referred to in paragraph 4 initially reviews a challenge, the Party shall ensure that the supplier may appeal the initial decision to an impartial administrative or judicial authority that is independent of the procuring entity whose procurement is the subject of the challenge.

 

6.       Each Party shall ensure that a review body that is not a court shall have its decision subject to judicial review or have procedures that provide that:

 

(a)     the procuring entity shall respond in writing to the challenge and disclose all relevant documents to the review body;

 

(b)     the participants to the proceedings (hereinafter referred to as “participants”) shall have the right to be heard prior to a decision of the review body being made on the challenge;

 

(c)     the participants shall have the right to be represented and accompanied;

 

(d)     the participants shall have access to all proceedings;

 

(e)     the participants shall have the right to request that the proceedings take place in public and that witnesses may be presented; and

 

(f)     the review body shall make its decisions or recommendations in a timely fashion, in writing, and shall include an explanation of the basis for each decision or recommendation.

 

7.       Each Party shall adopt or maintain procedures that provide for:

 

(a)     rapid interim measures to preserve the supplier’s opportunity to participate in the procurement. Such interim measures may result in suspension of the procurement process. The procedures may provide that overriding adverse consequences for the interests concerned, including the public interest, may be taken into account when deciding whether such measures should be applied. Just cause for not acting shall be provided in writing; and

 

(b)     where a review body has determined that there has been a breach or a failure as referred to in paragraph 1, corrective action or compensation for the loss or damages suffered, which may be limited to either the costs for the preparation of the tender or the costs relating to the challenge, or both.

 

Article XIX Modications and Rectifations to Coverage

Notification of Proposed Modification

 

1.       A Party shall notify the Committee of any proposed rectification, transfer of an entity from one annex to another, withdrawal of an entity or other modification of its annexes to Appendix I (any of which is hereinafter referred to as “modification”). The Party proposing the modification (hereinafter referred to as “modifying Party”) shall include in the notification:

 

(a)     for any proposed withdrawal of an entity from its annexes to Appendix I in exercise of its rights on the grounds that government control or influence over the entity’s covered procurement has been effectively eliminated, evidence of such elimination; or

 

(b)     for any other proposed modification, information as to the likely consequences of the change for the mutually agreed coverage provided for in this Agreement.

 

Objection to Notification

 

2.       Any Party whose rights under this Agreement may be affected by a proposed modification notified under paragraph 1 may notify the Committee of any objection to the proposed modification. Such objections shall be made within 45 days from the date of the circulation to the Parties of the notification, and shall set out reasons for the objection.

 

Consultations

 

3.       The modifying Party and any Party making an objection (hereinafter referred to as “objecting Party”) shall make every attempt to resolve the objection through consultations. In such consultations, the modifying and objecting Parties shall consider the proposed modification:

 

(a)     in the case of a notification under paragraph 1 (a), in accordance with any indicative criteria adopted pursuant to paragraph 8(b), indicating the effective elimination of government control or influence over an entity’s covered procurement; and

 

(b)     in the case of a notification under paragraph 1 (b), in accordance with any criteria adopted pursuant to paragraph 8(c), relating to the level of compensatory adjustments to be offered for modifications, with a view to maintaining a balance of rights and obligations and a comparable level of mutually agreed coverage provided in this Agreement.

 

Revised Modification

 

4.       Where the modifying Party and any objecting Party resolve the objection through consultations, and the modifying Party revises its proposed modification as a result of those consultations, the modifying Party shall notify the Committee in accordance with paragraph 1, and any such revised modification shall only be effective after fulfilling the requirements of this Article.

 

Implementation of Modifications

 

5.       A proposed modification shall become effective only where:

 

(a)     no Party submits to the Committee a written objection to the proposed modification within 45 days from the date of circulation of the notification of the proposed modification under paragraph 1;

 

(b)     all objecting Parties have notified the Committee that they withdraw their objections to the proposed modification; or

 

(c)     150 days from the date of circulation of the notification of the proposed modification under paragraph 1 have elapsed, and the modifying Party has informed the Committee in writing of its intention to implement the modification.

 

Withdrawal of Substantially Equivalent Coverage

 

6.       Where a modification becomes effective pursuant to paragraph 5(c), any objecting Party may withdraw substantially equivalent coverage. Notwithstanding Article IV:1(b), a withdrawal pursuant to this paragraph may be implemented solely with respect to the modifying Party. Any objecting Party shall inform the Committee in writing of any such withdrawal at least 30 days before the withdrawal becomes effective. A withdrawal pursuant to this paragraph shall be consistent with any criteria relating to the level of compensatory adjustment adopted by the Committee pursuant to paragraph 8(c).

 

Arbitration Procedures to Facilitate Resolution of Objections

 

7.       Where the Committee has adopted arbitration procedures to facilitate the resolution of objections pursuant to paragraph 8, a modifying or any objecting Party may invoke the arbitration procedures within 120 days of circulation of the notification of the proposed modification:

 

(a)     Where no Party has invoked the arbitration procedures within the time-period:

 

(i)     notwithstanding paragraph 5(c), the proposed modification shall become effective where 130 days from the date of circulation of the notification of the proposed modification under paragraph 1 have elapsed, and the modifying Party has informed the Committee in writing of its intention to implement the modification; and

 

(ii)     no objecting Party may withdraw coverage pursuant to paragraph 6.

 

(b)     Where a modifying Party or objecting Party has invoked the arbitration procedures:

 

(i)     notwithstanding paragraph 5(c), the proposed modification shall not become effective before the completion of the arbitration procedures;

 

(ii)     any objecting Party that intends to enforce a right to compensation, or to withdraw substantially equivalent coverage pursuant to paragraph 6, shall participate in the arbitration proceedings;

 

(iii)     a modifying Party should comply with the results of the arbitration procedures in making any modification effective pursuant to paragraph 5(c); and

 

(iv)     where a modifying Party does not comply with the results of the arbitration procedures in making any modification effective pursuant to paragraph 5(c), any objecting Party may withdraw substantially equivalent coverage pursuant to paragraph 6, provided that any such withdrawal is consistent with the result of the arbitration procedures.

 

Committee Responsibilities

 

8.       The Committee shall adopt:

 

(a)     arbitration procedures to facilitate resolution of objections under paragraph 2;

 

(b)     indicative criteria that demonstrate the effective elimination of government control or influence over an entity’s covered procurement; and

 

(c)     criteria for determining the level of compensatory adjustment to be offered for modifications made pursuant to paragraph 1 (b) and of substantially equivalent coverage under paragraph 6.

 

Article XX Consultations and Dispute Settlement

1.       Each Party shall accord sympathetic consideration to and shall afford adequate opportunity for consultation regarding any representation made by another Party with respect to any matter affecting the operation of this Agreement.

 

2.       Where any Party considers that any benefit accruing to it, directly or indirectly, under this Agreement is being nullified or impaired, or that the attainment of any objective of this Agreement is being impeded as the result of:

 

(a)     the failure of another Party or Parties to carry out its obligations under this Agreement; or

 

(b)     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 solution to the matter, have recourse to the provisions of the Understanding on Rules and Procedures Governing the Settlement of Disputes (hereinafter referred to as “the Dispute Settlement Understanding”).

 

3.       The Dispute Settlement Understanding shall apply to consultations and the settlement of disputes under this Agreement, with the exception that, notwithstanding paragraph 3 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 Appendix 1 of the Dispute Settlement Understanding.

 

Article XXI Institutions

Committee on Government Procurement

 

1.       There shall be a Committee on Government Procurement composed of representatives from each of the Parties. This Committee shall elect its own 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 that shall carry out such functions as may be given to them by the Committee.

 

3.       The Committee shall annually:

 

(a)     review the implementation and operation of this Agreement; and

 

(b)     inform the General Council of its activities, pursuant to Article IV:8 of the Marrakesh Agreement Establishing the World Trade Organization (hereinafter referred to as “WTO Agreement”), and of developments relating to the implementation and operation of this Agreement.

 

Observers

 

4.       Any WTO Member that is not a Party to this Agreement shall be entitled to participate in the Committee as an observer by submitting a written notice to the Committee. Any WTO observer may submit a written request to the Committee to participate in the Committee as an observer, and may be accorded observer status by the Committee.

 

Article XXII Final Provisions

(To be provided.)

 

Footnotes:

25. (footnote original) Agreement on Government Procurement, Article VII. See Norway — Procurement of Toll Collection Equipment for the City of Trondheim, GPR.DS2/R, adopted 13 May 1992, para. 5.1. In this case, the Panel concluded that the Government of Norway had not complied with its obligations under the Tokyo Round Agreement on Government Procurement in its conduct of the procurement in question in that the single tendering of the procurement in question was not justified under the Agreement. back to text
26. Panel Report, Guatemala — Cement I, para. 7.25. back to text
27. Panel Report, Canada — Wheat Exports and Grain Imports, footnote 156. back to text
28. GPA/M/1, paras. 56–57. back to text
29. GPA/M/2, paras. 49–51. The Text of the Decision can be found in GPA/4 of 10 July 1996. back to text
30. GPA/W/17, Annex 1. back to text
31. GPA/W/17, Annex 2. back to text
32. GPA/M/2, paras. 49–51. back to text
33. GPA/W/306 of 28 September 2009 and GPA/W/306/Corr.1 of 13 October 2009. back to text
34. Interim Committee on Government Procurement, adopted 25 October 1995, GPA/IC/W/31. back to text
35. GPA/M/1, Section B. The text of the decision can be found in GPA/1, Annex 1. back to text
36. GPA/M/1, Section B. The text of the decision can be found in GPA/1, Annexes 4 and 5. back to text
37. GPA/M/5, Section G. The text of the decision can be found in GPA/1/Add.2. back to text
38. GPA/1/Add.2. back to text
39. WT/L/452. back to text
40. The text of the revised decision adopted by the Committee at its meeting of 8 October 2002 can be found in document GPA/72. back to text
41. GPA/5 of 19 July 1996. back to text
42. Panel Report, Korea — Procurement, para. 7.86. back to text
43. Panel Report, Korea — Procurement, para. 7.87. back to text
44. Panel Report, Korea — Procurement, para. 7.99. back to text
45. (footnote original) We note that DSU Article 7.1 requires that the relevant covered agreement be cited in the request for a panel and reflected in the terms of reference of a panel. That is not a bar to a broader analysis of the type we are following here, for the GPA would be the referenced covered agreement and, in our view, we are merely fully examining the issue of non-violation raised by the United States. We are merely doing it within the broader context of customary international law rather than limiting it to the traditional analysis that accords with the extended concept of pacta sunt servanda. The purpose of the terms of reference is to properly identify the claims of the party and therefore the scope of a panel’s review. We do not see any basis for arguing that the terms of reference are meant to exclude reference to the broader rules of customary international law in interpreting a claim properly before the Panel. back to text
46. Panel Report, Korea — Procurement, paras. 7.100–7.101. back to text
47. Panel Report, Korea — Procurement, para. 7.119. back to text
48. Panel Report, Korea — Procurement, paras. 7.121–7.122. back to text
49. Panel Report, Korea — Procurement, para. 7.124. back to text
50. Panel Report, Korea — Procurement, para. 7.125. back to text
51. With respect to accession to the Agreement on Government Procurement, in Marrakesh, see the Decision on Accession to the Agreement on Government Procurement, in Section XXVII. back to text
52. GPA/M/1, Section B. The Text of the Decision can be found in GPA/1, Annex 2. back to text
53. GPA/M/13, Section G, and GPA/M/14, Section C. The text of the adopted document can be found in GPA/35. back to text
54. GPA/58, para. 22 and GPA/M/15, paras. 15–16. See also GPA/W/109 of 28 Feb. 2000 and GPA/W/109/Rev.1 of 26 June 2000. back to text
55. GPA/87 of 2 June 2006. back to text
56. GPA/M/8, Section C and GPA/M/9, Section B. The text of the Note can be found in GPA/W/65 of 9 January 1998. back to text
57. GPA/M/2, para.7. The Text of the Decision can be found in GPA/1/Add.1. back to text
58. GPA/W/306 of 28 September 2009 and GPA/W/306/Corr.1 of 13 October 2009. back to text
59. GPA/M/5, Section D. See also GPA/W/35/Rev.1, para. 4. back to text
60. See also the Note by the Secretariat on Procedures for Future Changes to the Loose-Leaf System for Appendices to the Agreement (GPA/W/110 of 7 March 2000). Proposals and any supplementary documents relating to them are circulated GPA/ MOD/- document series (formerly in the GPA/W/- series). Once a proposal has been approved, the new or amended page(s) is certified in a WT/Let/- document and the relevant documentation derestricted. An up-to-date electronic copy of the loose-leaf system is available on the WTO website (www.wto.org). back to text
61. GPA/M/22, paras. 14–28. The Text of the Decision can be found in GPA/78. back to text
62. GPA/M/22, para. 17, including the text of the statement. back to text
63. GPA/M/25, paras. 2–3. The Text of the Decision can be found in GPA/83. back to text
64. GPA/MOD/ISR/1. back to text
65. GPA/M/29, paras 4–14. The Text of the Decision can be found in GPA/86 of 22 December 2005. back to text
66. GPA/M/31, paras. 15–23. The Text of the Decision can be found in GPA/90 of 11 December 2006. back to text
67. GPA/M/31, para. 19, including the text of the statement. back to text
68. Panel Report, Korea — Procurement, footnote 717. back to text
69. GPA/89, paras. 20–21. back to text
70. See also GPA/W/313/Corr.1 of 13 January 2011. back to text
71. GPA/M/23, paras. 2–6. The Text of the Decision can be found in GPA/79. back to text
72. GPA/79/Add.1 of 22 July 2005. back to text
73. Panel Report, Korea — Procurement, para. 7.9. back to text
74. GPA/W/313. See also GPA/W/313/Corr.1. For information on the background to the provisionally agreed revised text of the Agreement on Government Procurement reproduced in this section, see the Section of this Chapter on Article XXIV:7(b). back to text

 

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