AGREEMENT ON GOVERNMENT PROCUREMENT
Parties to this Agreement (hereinafter referred to as "Parties"),Recognizing the need for an effective multilateral framework of rights and obligations with respect to laws, regulations, procedures and practices
regarding government procurement with a view to achieving greater liberalization and expansion of world trade and improving the international framework for the conduct of world trade;
Recognizing that laws, regulations, procedures and practices regarding government procurement should not be prepared, adopted or applied to foreign or domestic products and services and to foreign or domestic
suppliers so as to afford protection to domestic products or services or domestic suppliers and should not discriminate among foreign products or services or among foreign suppliers;
Recognizing that it is desirable to provide transparency of laws, regulations, procedures and practices regarding government procurement;
Recognizing the need to establish international procedures on notification, consultation, surveillance and dispute settlement with a view to ensuring a fair, prompt and effective enforcement of the international provisions on government procurement and to maintain the balance of rights and obligations at the highest possible level;
Recognizing the need to take into account the development, financial and trade needs of developing countries, in particular the least-developed countries;
Desiring, in accordance with paragraph 6(b) of Article IX of the Agreement on Government Procurement done on 12 April 1979, as amended on 2 February 1987, to broaden and improve the Agreement on the basis of mutual
reciprocity and to expand the coverage of the Agreement to include service contracts;
Desiring to encourage acceptance of and accession to this Agreement by governments not party to it;
Having undertaken further negotiations in pursuance of these objectives;
Hereby agree as follows:
Article I - Scope and Coverage
1. This Agreement applies to any law, regulation, procedure or practice regarding any procurement by entities covered by this Agreement, as specified in Appendix I.[1]
2. This Agreement applies to procurement by any contractual means, including through such methods as purchase or as lease, rental or hire purchase, with or without an option to buy, including any combination of products and services.
3. Where entities, in the context of procurement covered under this Agreement, require enterprises not included in Appendix I to award contracts in accordance with particular requirements, Article III shall
apply mutatis mutandis to such requirements.
4. This Agreement applies to any procurement contract of a value of not less than the relevant threshold specified in Appendix I.
Article II - Valuation of Contracts
1. The following provisions shall apply in determining the value of
contracts[2] for purposes of implementing this Agreement.
2. Valuation shall take into account all forms of remuneration, including
any premiums, fees, commissions and interest receivable.
3. The selection of the valuation method by the entity shall not be used,
nor shall any procurement requirement be divided, with the intention of
avoiding the application of this Agreement.
4. If an individual requirement for a procurement results in the award of
more than one contract, or in contracts being awarded in separate parts,
the basis for valuation shall be either:
(a) the actual value of similar recurring contracts concluded over the
previous fiscal year or 12 months adjusted, where possible, for
anticipated changes in quantity and value over the subsequent 12 months;
or
(b) the estimated value of recurring contracts in the fiscal year or 12
months subsequent to the initial contract.
5. In cases of contracts for the lease, rental or hire purchase of
products or services, or in the case of contracts which do not specify a
total price, the basis for valuation shall be:
(a) in the case of fixed-term contracts, where their term is 12 months or
less, the total contract value for their duration, or, where their term
exceeds 12 months, their total value including the estimated residual
value;
(b) in the case of contracts for an indefinite period, the monthly
instalment multiplied by 48.
If there is any doubt, the second basis for valuation, namely (b), is to
be used.
6. In cases where an intended procurement specifies the need for option
clauses, the basis for valuation shall be the total value of the maximum
permissible procurement, inclusive of optional purchases.
Article III - National Treatment and Non-discrimination
1. With respect to all laws, regulations, procedures and practices
regarding government procurement covered by this Agreement, each Party
shall provide immediately and unconditionally to the products, services
and suppliers of other Parties offering products or services of the
Parties, treatment no less favourable than:
(a) that accorded to domestic products, services and suppliers; and
(b) that accorded to products, services and suppliers of any other Party.
2. With respect to all laws, regulations, procedures and practices
regarding government procurement covered by this Agreement, each Party
shall ensure:
(a) that its entities shall not treat a locally-established supplier less
favourably than another locally-established supplier on the basis of
degree of foreign affiliation or ownership; and
(b) that its entities shall not discriminate against locally-established
suppliers on the basis of the country of production of the good or service
being supplied, provided that the country of production is a Party to the
Agreement in accordance with the provisions of Article IV.
3. The provisions of paragraphs 1 and 2 shall not apply to customs duties
and charges of any kind imposed on or in connection with importation, the
method of levying such duties and charges, other import regulations and
formalities, and measures affecting trade in services other than laws,
regulations, procedures and practices regarding government procurement
covered by this Agreement.
Article IV - Rules of Origin
1. A Party shall not apply rules of origin to products or services
imported or supplied for purposes of government procurement covered by
this Agreement from other Parties, which are different from the rules of
origin applied in the normal course of trade and at the time of the
transaction in question to imports or supplies of the same products or
services from the same Parties.
2. Following the conclusion of the work programme for the harmonization of
rules of origin for goods to be undertaken under the Agreement on Rules of
Origin in Annex 1A of the Agreement Establishing the World Trade
Organization (hereinafter referred to as "WTO Agreement") and negotiations
regarding trade in services, Parties shall take the results of that work
programme and those negotiations into account in amending paragraph 1 as
appropriate.
Article V - Special and Differential Treatment for Developing Countries
Objectives
1. Parties shall, in the implementation and administration of this
Agreement, through the provisions set out in this Article, duly take into
account the development, financial and trade needs of developing
countries, in particular least-developed countries, in their need to:
(a) safeguard their balance-of-payments position and ensure a level of
reserves adequate for the implementation of programmes of economic
development;
(b) promote the establishment or development of domestic industries
including the development of small-scale and cottage industries in rural
or backward areas; and economic development of other sectors of the
economy;
(c) support industrial units so long as they are wholly or substantially
dependent on government procurement; and
(d) encourage their economic development through regional or global
arrangements among developing countries presented to the Ministerial
Conference of the World Trade Organization (hereinafter referred to as the
"WTO") and not disapproved by it.
2. Consistently with the provisions of this Agreement, each Party shall,
in the preparation and application of laws, regulations and procedures
affecting government procurement, facilitate increased imports from
developing countries, bearing in mind the special problems of
least-developed countries and of those countries at low stages of economic
development.
Coverage
3. With a view to ensuring that developing countries are able to adhere to
this Agreement on terms consistent with their development, financial and
trade needs, the objectives listed in paragraph 1 shall be duly taken into
account in the course of negotiations with respect to the procurement of
developing countries to be covered by the provisions of this Agreement.
Developed countries, in the preparation of their coverage lists under the
provisions of this Agreement, shall endeavour to include entities
procuring products and services of export interest to developing
countries.
Agreed Exclusions
4. A developing country may negotiate with other participants in
negotiations under this Agreement mutually acceptable exclusions from the
rules on national treatment with respect to certain entities, products or
services that are included in its coverage lists, having regard to the
particular circumstances of each case. In such negotiations, the
considerations mentioned in subparagraphs 1(a) through 1(c) shall be duly
taken into account. A developing country participating in regional or
global arrangements among developing countries referred to in subparagraph
1(d) may also negotiate exclusions to its lists, having regard to the
particular circumstances of each case, taking into account, inter alia,
the provisions on government procurement provided for in the regional or
global arrangements concerned and, in particular, products or services
which may be subject to common industrial development programmes.
5. After entry into force of this Agreement, a developing country Party
may modify its coverage lists in accordance with the provisions for
modification of such lists contained in paragraph 6 of Article XXIV,
having regard to its development, financial and trade needs, or may
request the Committee on Government Procurement (hereinafter referred to
as "the Committee") to grant exclusions from the rules on national
treatment for certain entities, products or services that are included in
its coverage lists, having regard to the particular circumstances of each
case and taking duly into account the provisions of subparagraphs 1(a)
through 1(c). After entry into force of this Agreement, a developing
country Party may also request the Committee to grant exclusions for
certain entities, products or services that are included in its coverage
lists in the light of its participation in regional or global arrangements
among developing countries, having regard to the particular circumstances
of each case and taking duly into account the provisions of subparagraph
1(d). Each request to the Committee by a developing country Party relating
to modification of a list shall be accompanied by documentation relevant
to the request or by such information as may be necessary for
consideration of the matter.
6. Paragraphs 4 and 5 shall apply mutatis mutandis to developing countries
acceding to this Agreement after its entry into force.
7. Such agreed exclusions as mentioned in paragraphs 4, 5 and 6 shall be
subject to review in accordance with the provisions of paragraph 14 below.
Technical Assistance for Developing Country Parties
8. Each developed country Party shall, upon request, provide all technical
assistance which it may deem appropriate to developing country Parties in
resolving their problems in the field of government procurement.
9. This assistance, which shall be provided on the basis of
non-discrimination among developing country Parties, shall relate, inter
alia, to:
- the solution of particular technical problems relating to the award of a
specific contract; and
- any other problem which the Party making the request and another Party
agree to deal with in the context of this assistance.
10. Technical assistance referred to in paragraphs 8 and 9 would include
translation of qualification documentation and tenders made by suppliers
of developing country Parties into an official language of the WTO
designated by the entity, unless developed country Parties deem
translation to be burdensome, and in that case explanation shall be given
to developing country Parties upon their request addressed either to the
developed country Parties or to their entities.
Information Centres
11. Developed country Parties shall establish, individually or jointly,
information centres to respond to reasonable requests from developing
country Parties for information relating to, inter alia, laws,
regulations, procedures and practices regarding government procurement,
notices about intended procurements which have been published, addresses
of the entities covered by this Agreement, and the nature and volume of
products or services procured or to be procured, including available
information about future tenders. The Committee may also set up an
information centre.
Special Treatment for Least-Developed Countries
12. Having regard to paragraph 6 of the Decision of the CONTRACTING
PARTIES to GATT 1947 of 28 November 1979 on Differential and More
Favourable Treatment, Reciprocity and Fuller Participation of Developing
Countries (BISD 26S/203-205), special treatment shall be granted to
least-developed country Parties and to the suppliers in those Parties with
respect to products or services originating in those Parties, in the
context of any general or specific measures in favour of developing
country Parties. A Party may also grant the benefits of this Agreement to
suppliers in least-developed countries which are not Parties, with respect
to products or services originating in those countries.
13. Each developed country Party shall, upon request, provide assistance
which it may deem appropriate to potential tenderers in least-developed
countries in submitting their tenders and selecting the products or
services which are likely to be of interest to its entities as well as to
suppliers in least-developed countries, and likewise assist them to comply
with technical regulations and standards relating to products or services
which are the subject of the intended procurement.
Review
14. The Committee shall review annually the operation and effectiveness of
this Article and, after each three years of its operation on the basis of
reports to be submitted by Parties, shall carry out a major review in
order to evaluate its effects. As part of the three-yearly reviews and
with a view to achieving the maximum implementation of the provisions of
this Agreement, including in particular Article III, and having regard to
the development, financial and trade situation of the developing countries
concerned, the Committee shall examine whether exclusions provided for in
accordance with the provisions of paragraphs 4 through 6 of this Article
shall be modified or extended.
15. In the course of further rounds of negotiations in accordance with the
provisions of paragraph 7 of Article XXIV, each developing country Party
shall give consideration to the possibility of enlarging its coverage
lists, having regard to its economic, financial and trade situation.
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.
3. There shall be no requirement or reference to a particular trademark or
trade name, patent, design or type, specific origin, producer or supplier,
unless there is no sufficiently precise or intelligible way of describing
the procurement requirements and provided that words such as "or
equivalent" are included in the tender documentation.
4. Entities shall not seek or accept, in a manner which would have the
effect of precluding competition, advice which may be used in the
preparation of specifications for a specific procurement from a firm that
may have a commercial interest in the procurement.
Article VII - Tendering Procedures
1. Each Party shall ensure that the tendering procedures of its entities
are applied in a non-discriminatory manner and are consistent with the
provisions contained in Articles VII through XVI.
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.
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
non-discrimination provisions of this Agreement.
Article IX - Invitation to Participate Regarding Intended Procurement
1. In accordance with paragraphs 2 and 3, entities shall publish an
invitation to participate for all cases of intended procurement, except as
otherwise provided for in Article XV (limited tendering). The notice shall
be published in the appropriate publication listed in Appendix II.
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.
Article X - Selection Procedures
1. To ensure optimum effective international competition under selective
tendering procedures, entities shall, for each intended procurement,
invite tenders from the maximum number of domestic suppliers and suppliers
of other Parties, consistent with the efficient operation of the
procurement system. They shall select the suppliers to participate in the
procedure in a fair and non-discriminatory manner.
2. Entities 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.
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.
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.
Article XIII - Submission, Receipt and Opening of Tenders and Awarding of
Contracts
1. The submission, receipt and opening of tenders and awarding of
contracts shall be consistent with the following:
(a) tenders shall normally be submitted in writing directly or by mail. If
tenders by telex, telegram or facsimile are permitted, the tender made
thereby must include all the information necessary for the evaluation of
the tender, in particular the definitive price proposed by the tenderer
and a statement that the tenderer agrees to all the terms, conditions and
provisions of the invitation to tender. The tender must be confirmed
promptly by letter or by the despatch of a signed copy of the telex,
telegram or facsimile. Tenders presented by telephone shall not be
permitted. The content of the telex, telegram or facsimile shall prevail
where there is a difference or conflict between that content and any
documentation received after the time-limit; and
(b) the opportunities that may be given to tenderers to correct
unintentional errors of form between the opening of tenders and the
awarding of the contract shall not be permitted to give rise to any
discriminatory practice.
Receipt of Tenders
2. A supplier shall not be penalized if a tender is received in the office
designated in the tender documentation after the time specified because of
delay due solely to mishandling on the part of the entity. Tenders may
also be considered in other exceptional circumstances if the procedures of
the entity concerned so provide.
Opening of Tenders
3. All tenders solicited under open or selective procedures by entities
shall be received and opened under procedures and conditions guaranteeing
the regularity of the openings. The receipt and opening of tenders shall
also be consistent with the national treatment and non-discrimination
provisions of this Agreement. Information on the opening of tenders shall
remain with the entity concerned at the disposal of the government
authorities responsible for the entity in order that it may be used if
required under the procedures of Articles XVIII, XIX, XX and XXII.
Award of Contracts
4. (a) To be considered for award, a tender must, at the time of opening,
conform to the essential requirements of the notices or tender
documentation and be from a supplier which complies with the conditions
for participation. If an entity has received a tender abnormally lower
than other tenders submitted, it may enquire with the tenderer to ensure
that it can comply with the conditions of participation and be capable of
fulfilling the terms of the contract.
(b) Unless in the public interest an entity decides not to issue the
contract, the entity shall make the award to the tenderer who has been
determined to be fully capable of undertaking the contract and whose
tender, whether for domestic products or services, or products or services
of other Parties, is either the lowest tender or the tender which in terms
of the specific evaluation criteria set forth in the notices or tender
documentation is determined to be the most advantageous.
(c) Awards shall be made in accordance with the criteria and essential
requirements specified in the tender documentation.
Option Clauses
5. Option clauses shall not be used in a manner which circumvents the
provisions of the Agreement.
Article XIV - Negotiation
1. A Party may provide for entities to conduct negotiations:
(a) in the context of procurements in which they have indicated such
intent, namely in the notice referred to in paragraph 2 of Article IX (the
invitation to suppliers to participate in the procedure for the proposed
procurement); or
(b) when it appears from evaluation that no one tender is obviously the
most advantageous in terms of the specific evaluation criteria set forth
in the notices or tender documentation.
2. Negotiations shall primarily be used to identify the strengths and
weaknesses in tenders.
3. Entities shall treat tenders in confidence. In particular, they shall
not provide information intended to assist particular participants to
bring their tenders up to the level of other participants.
4. Entities shall not, in the course of negotiations, discriminate between
different suppliers. In particular, they shall ensure that:
(a) any elimination of participants is carried out in accordance with the
criteria set forth in the notices and tender documentation;
(b) all modifications to the criteria and to the technical requirements
are transmitted in writing to all remaining participants in the
negotiations;
(c) all remaining participants are afforded an opportunity to submit new
or amended submissions on the basis of the revised requirements; and
(d) when negotiations are concluded, all participants remaining in the
negotiations shall be permitted to submit final tenders in accordance with
a common deadline.
Article XV - Limited Tendering
1. The provisions of Articles VII through XIV governing open and selective
tendering procedures need not apply in the following conditions, provided
that limited tendering is not used with a view to avoiding maximum
possible competition or in a manner which would constitute a means of
discrimination among suppliers of other Parties or protection to domestic
producers or suppliers:
(a) in the absence of tenders in response to an open or selective tender,
or when the tenders submitted have been collusive, or not in conformity
with the essential requirements in the tender, or from suppliers who do
not comply with the conditions for participation provided for in
accordance with this Agreement, on condition, however, that the
requirements of the initial tender are not substantially modified in the
contract as awarded;
(b) when, for works of art or for reasons connected with protection of
exclusive rights, such as patents or copyrights, or in the absence of
competition for technical reasons, the products or services can be
supplied only by a particular supplier and no reasonable alternative or
substitute exists;
(c) in so far as is strictly necessary when, for reasons of extreme
urgency brought about by events unforeseeable by the entity, the products
or services could not be obtained in time by means of open or selective
tendering procedures;
(d) for additional deliveries by the original supplier which are intended
either as parts replacement for existing supplies, or installations, or as
the extension of existing supplies, services, or installations where a
change of supplier would compel the entity to procure equipment or
services not meeting requirements of interchangeability with already
existing equipment or services[5];
(e) when an entity procures prototypes or a first product or service which
are developed at its request in the course of, and for, a particular
contract for research, experiment, study or original development. When
such contracts have been fulfilled, subsequent procurements of products or
services shall be subject to Articles VII through XIV[6];
(f) when additional construction services which were not included in the
initial contract but which were within the objectives of the original
tender documentation have, through unforeseeable circumstances, become
necessary to complete the construction services described therein, and the
entity needs to award contracts for the additional construction services
to the contractor carrying out the construction services concerned since
the separation of the additional construction services from the initial
contract would be difficult for technical or economic reasons and cause
significant inconvenience to the entity. However, the total value of
contracts awarded for the additional construction services may not exceed
50 per cent of the amount of the main contract;
(g) for new construction services consisting of the repetition of similar
construction services which conform to a basic project for which an
initial contract was awarded in accordance with Articles VII through XIV
and for which the entity has indicated in the notice of intended
procurement concerning the initial construction service, that limited
tendering procedures might be used in awarding contracts for such new
construction services;
(h) for products purchased on a commodity market;
(i) for purchases made under exceptionally advantageous conditions which
only arise in the very short term. This provision is intended to cover
unusual disposals by firms which are not normally suppliers, or disposal
of assets of businesses in liquidation or receivership. It is not intended
to cover routine purchases from regular suppliers;
(j) in the case of contracts awarded to the winner of a design contest
provided that the contest has been organized in a manner which is
consistent with the principles of this Agreement, notably as regards the
publication, in the sense of Article IX, of an invitation to suitably
qualified suppliers, to participate in such a contest which shall be
judged by an independent jury with a view to design contracts being
awarded to the winners.
2. Entities shall prepare a report in writing on each contract awarded
under the provisions of paragraph 1. Each report shall contain the name of
the procuring entity, value and kind of goods or services procured,
country of origin, and a statement of the conditions in this Article which
prevailed. This report shall remain with the entities concerned at the
disposal of the government authorities responsible for the entity in order
that it may be used if required under the procedures of Articles XVIII,
XIX, XX and XXII.
Article XVI - Offsets
1. Entities shall not, in the qualification and selection of suppliers,
products or services, or in the evaluation of tenders and award of
contracts, impose, seek or consider offsets.[7]
2. Nevertheless, having regard to general policy considerations, including
those relating to development, a developing country may at the time of
accession negotiate conditions for the use of offsets, such as
requirements for the incorporation of domestic content. Such requirements
shall be used only for qualification to participate in the procurement
process and not as criteria for awarding contracts. Conditions shall be
objective, clearly defined and non-discriminatory. They shall be set forth
in the country's Appendix I and may include precise limitations on the
imposition of offsets in any contract subject to this Agreement. The
existence of such conditions shall be notified to the Committee and
included in the notice of intended procurement and other documentation.
Article XVII - Transparency
1. Each Party shall encourage entities to indicate the terms and
conditions, including any deviations from competitive tendering procedures
or access to challenge procedures, under which tenders will be entertained
from suppliers situated in countries not Parties to this Agreement but
which, with a view to creating transparency in their own contract awards,
nevertheless:
(a) specify their contracts in accordance with Article VI (technical
specifications);
(b) publish the procurement notices referred to in Article IX, including,
in the version of the notice referred to in paragraph 8 of Article IX
(summary of the notice of intended procurement) which is published in an
official language of the WTO, an indication of the terms and conditions
under which tenders shall be entertained from suppliers situated in
countries Parties to this Agreement;
(c) are willing to ensure that their procurement regulations shall not
normally change during a procurement and, in the event that such change
proves unavoidable, to ensure the availability of a satisfactory means of
redress.
2. Governments not Parties to the Agreement which comply with the
conditions specified in paragraphs 1(a) through 1(c), shall be entitled if
they so inform the Parties to participate in the Committee as observers.
Article XVIII - Information and Review as Regards Obligations of Entities
1. Entities shall publish a notice in the appropriate publication listed
in Appendix II not later than 72 days after the award of each contract
under Articles XIII through XV. These notices shall contain:
(a) the nature and quantity of products or services in the contract award;
(b) the name and address of the entity awarding the contract;
(c) the date of award;
(d) the name and address of winning tenderer;
(e) the value of the winning award or the highest and lowest offer taken
into account in the award of the contract;
(f) where appropriate, means of identifying the notice issued under
paragraph 1 of Article IX or justification according to Article XV for the
use of such procedure; and
(g) the type of procedure used.
2. Each entity shall, on request from a supplier of a Party, promptly
provide:
(a) an explanation of its procurement practices and procedures;
(b) pertinent information concerning the reasons why the supplier's
application to qualify was rejected, why its existing qualification was
brought to an end and why it was not selected; and
(c) to an unsuccessful tenderer, pertinent information concerning the
reasons why its tender was not selected and on the characteristics and
relative advantages of the tender selected as well as the name of the
winning tenderer.
3. Entities shall promptly inform participating suppliers of decisions on
contract awards and, upon request, in writing.
4. However, entities may decide that certain information on the contract
award, contained in paragraphs 1 and 2(c), be withheld where release of
such information would impede law enforcement or otherwise be contrary to
the public interest or would prejudice the legitimate commercial interest
of particular enterprises, public or private, or might prejudice fair
competition between suppliers.
Article XIX - Information and Review as Regards Obligations of 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.
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.
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.
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.
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.
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.
2. Accession
Any government which is a Member of the WTO, or prior to the date of entry
into force of the WTO Agreement which is a contracting party to GATT 1947,
and which is not a Party to this Agreement may accede to this Agreement on
terms to be agreed between that government and the Parties. Accession
shall take place by deposit with the Director-General of the WTO of an
instrument of accession which states the terms so agreed. The Agreement
shall enter into force for an acceding government on the 30th day
following the date of its accession to the Agreement.
3. Transitional Arrangements
(a) Hong Kong and Korea may delay application of the provisions of this
Agreement, except Articles XXI and XXII, to a date not later than 1
January 1997. The commencement date of their application of the
provisions, if prior to 1 January 1997, shall be notified to the
Director-General of the WTO 30 days in advance.
(b) During the period between the date of entry into force of this
Agreement and the date of its application by Hong Kong, the rights and
obligations between Hong Kong and all other Parties to this Agreement
which were on 15 April 1994 Parties to the Agreement on Government
Procurement done at Geneva on 12 April 1979 as amended on 2 February 1987
(the "1988 Agreement") shall be governed by the substantive[9] provisions
of the 1988 Agreement, including its Annexes as modified or rectified,
which provisions are incorporated herein by reference for that purpose and
shall remain in force until 31 December 1996.
(c) Between Parties to this Agreement which are also Parties to the 1988
Agreement, the rights and obligations of this Agreement shall supersede
those under the 1988 Agreement.
(d) Article XXII shall not enter into force until the date of entry into
force of the WTO Agreement. Until such time, the provisions of Article VII
of the 1988 Agreement shall apply to consultations and dispute settlement
under this Agreement, which provisions are hereby incorporated in the
Agreement by reference for that purpose. These provisions shall be applied
under the auspices of the Committee under this Agreement.
(e) Prior to the date of entry into force of the WTO Agreement, references
to WTO bodies shall be construed as referring to the corresponding GATT
body and references to the Director-General of the WTO and to the WTO
Secretariat shall be construed as references to, respectively, the
Director-General to the CONTRACTING PARTIES to GATT 1947 and to the GATT
Secretariat.
4. Reservations
Reservations may not be entered in respect of any of the provisions of
this Agreement.
5. National Legislation
(a) Each government accepting or acceding to this Agreement shall ensure,
not later than the date of entry into force of this Agreement for it, the
conformity of its laws, regulations and administrative procedures, and the
rules, procedures and practices applied by the entities contained in its
lists annexed hereto, with the provisions of this Agreement.
(b) Each Party shall inform the Committee of any changes in its laws and
regulations relevant to this Agreement and in the administration of such
laws and regulations.
6. Rectifications or Modifications
(a) Rectifications, transfers of an entity from one Annex to another or,
in exceptional cases, other modifications relating to Appendices I through
IV shall be notified to the Committee, along with information as to the
likely consequences of the change for the mutually agreed coverage
provided in this Agreement. If the rectifications, transfers or other
modifications are of a purely formal or minor nature, they shall become
effective provided there is no objection within 30 days. In other cases,
the Chairman of the Committee shall promptly convene a meeting of the
Committee. The Committee shall consider the proposal and any claim for
compensatory adjustments, with a view to maintaining a balance of rights
and obligations and a comparable level of mutually agreed coverage
provided in this Agreement prior to such notification. In the event of
agreement not being reached, the matter may be pursued in accordance with
the provisions contained in Article XXII.
(b) Where a Party wishes, in exercise of its rights, to withdraw an entity
from Appendix I on the grounds that government control or influence over
it has been effectively eliminated, that Party shall notify the Committee.
Such modification shall become effective the day after the end of the
following meeting of the Committee, provided that the meeting is no sooner
than 30 days from the date of notification and no objection has been made.
In the event of an objection, the matter may be pursued in accordance with
the procedures on consultations and dispute settlement contained in
Article XXII. In considering the proposed modification to Appendix I and
any consequential compensatory adjustment, allowance shall be made for the
market-opening effects of the removal of government control or influence.
7. Reviews, Negotiations and Future Work
(a) The Committee shall review annually the implementation and operation
of this Agreement taking into account the objectives thereof. The
Committee shall annually inform the General Council of the WTO of
developments during the periods covered by such reviews.
(b) Not later than the end of the third year from the date of entry into
force of this Agreement and periodically thereafter, the Parties thereto
shall undertake further negotiations, with a view to improving this
Agreement and achieving the greatest possible extension of its coverage
among all Parties on the basis of mutual reciprocity, having regard to the
provisions of Article V relating to developing countries.
(c) Parties shall seek to avoid introducing or prolonging discriminatory
measures and practices which distort open procurement and shall, in the
context of negotiations under subparagraph (b), seek to eliminate those
which remain on the date of entry into force of this Agreement.
8. Information Technology
With a view to ensuring that the Agreement does not constitute an
unnecessary obstacle to technical progress, Parties shall consult
regularly in the Committee regarding developments in the use of
information technology in government procurement and shall, if necessary,
negotiate modifications to the Agreement. These consultations shall in
particular aim to ensure that the use of information technology promotes
the aims of open, non-discriminatory and efficient government procurement
through transparent procedures, that contracts covered under the Agreement
are clearly identified and that all available information relating to a
particular contract can be identified. When a Party intends to innovate,
it shall endeavour to take into account the views expressed by other
Parties regarding any potential problems.
9. Amendments
Parties may amend this Agreement having regard, inter alia, to the
experience gained in its implementation. Such an amendment, once the
Parties have concurred in accordance with the procedures established by
the Committee, shall not enter into force for any Party until it has been
accepted by such Party.
10. Withdrawal
(a) Any Party may withdraw from this Agreement. The withdrawal shall take
effect upon the expiration of 60 days from the date on which written
notice of withdrawal is received by the Director-General of the WTO. Any
Party may upon such notification request an immediate meeting of the
Committee.
(b) If a Party to this Agreement does not become a Member of the WTO
within one year of the date of entry into force of the WTO Agreement or
ceases to be a Member of the WTO, it shall cease to be a Party to this
Agreement with effect from the same date.
11. Non-application of this Agreement between Particular Parties
This Agreement shall not apply as between any two Parties if either of the
Parties, at the time either accepts or accedes to this Agreement, does not
consent to such application.
12. Notes, Appendices and Annexes
The Notes, Appendices and Annexes to this Agreement constitute an integral
part thereof.
13. Secretariat
This Agreement shall be serviced by the WTO Secretariat.
14. Deposit
This Agreement shall be deposited with the Director-General of the WTO,
who shall promptly furnish to each Party a certified true copy of this
Agreement, of each rectification or modification thereto pursuant to
paragraph 6 and of each amendment thereto pursuant to paragraph 9, and a
notification of each acceptance thereof or accession thereto pursuant to
paragraphs 1 and 2 and of each withdrawal therefrom pursuant to paragraph
10 of this Article.
15. Registration
This Agreement shall be registered in accordance with the provisions of
Article 102 of the Charter of the United Nations.
Done at Marrakesh this fifteenth day of April one thousand nine hundred
and ninety-four in a single copy, in the English, French and Spanish
languages, each text being authentic, except as otherwise specified with
respect to the Appendices hereto.
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.
[1] For each Party, Appendix I is divided into five Annexes:
- Annex 1 contains central government entities.
- Annex 2 contains sub-central government entities.
- Annex 3 contains all other entities that procure in accordance with the
provisions of this Agreement.
- Annex 4 specifies services, whether listed positively or negatively,
covered by this Agreement.
- Annex 5 specifies covered construction services.
Relevant thresholds are specified in each Party's Annexes.
[2] This Agreement shall apply to any procurement contract for which the contract value is estimated to equal or exceed the threshold at the time of publication of the notice in accordance with Article IX.
[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
labeling requirements as they apply to a product, service, process or production method.
[4] For the purpose of this Agreement, a standard is a document approved by a recognized body, that provides, for common and repeated use, rules, guidelines or characteristics for products or services or related processes and production methods, with which compliance is not mandatory.
It may also include or deal exclusively with terminology, symbols, packaging, marking or
labeling requirements as they apply to a product, service, process or production method.
[5] It is the understanding that "existing equipment" includes software to the extent that the initial procurement of the software was covered by the Agreement.
[6] Original development of a first product or service 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.
[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.
[8] For the purpose of this Agreement, the term "government" is deemed to include the competent authorities of the European Communities.
[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.
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