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WTO ANALYTICAL INDEX: AGREEMENT ON GOVERNMENT PROCUREMENT

Agreement on Government Procurement(1)

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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


I. Preamble    back to top

A. Text of the Preamble

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

 

          Recognizing the need for an effective multilateral framework of rights and obligations with respect to laws, regulations, procedures and practices regarding government procurement with a view to achieving greater liberalization and expansion of world trade and improving the international framework for the conduct of world trade;

 

          Recognizing that laws, regulations, procedures and practices regarding government procurement should not be prepared, adopted or applied to foreign or domestic products and services and to foreign or domestic suppliers so as to afford protection to domestic products or services or domestic suppliers and should not discriminate among foreign products or services or among foreign suppliers;

 

          Recognizing that it is desirable to provide transparency of laws, regulations, procedures and practices regarding government procurement;

 

          Recognizing the need to establish international procedures on notification, consultation, surveillance and dispute settlement with a view to ensuring a fair, prompt and effective enforcement of the international provisions on government procurement and to maintain the balance of rights and obligations at the highest possible level;

 

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

 

          Desiring, in accordance with paragraph 6(b) of Article IX of the Agreement on Government Procurement done on 12 April 1979, as amended on 2 February 1987, to broaden and improve the Agreement on the basis of mutual reciprocity and to expand the coverage of the Agreement to include service contracts;

 

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

 

          Having undertaken further negotiations in pursuance of these objectives;

 

          Hereby agree as follows:


B. Interpretation and Application of the Preamble

(a) “to expand the coverage of the Agreement to include service contracts”

1.      The Panel in Korea — Procurement recalled the background to the Agreement on Government Procurement, including its expansion to cover services:

“The original Agreement on Government Procurement was negotiated during the Tokyo Round of trade negotiations and was done in Geneva on 12 April 1979 (“Tokyo Round Agreement”). This Agreement was amended following negotiations in pursuance of Article IX:6(b) through a Protocol which entered into force on 14 February 1988. During the Uruguay Round of Trade Negotiations, Parties to the Tokyo Round Agreement held further negotiations in the context of an Informal Working Group,(2) which involved the broadening of entity coverage, expansion of the coverage to services and construction services and further improvements of the text of the Agreement.”(3)

2.      The Panel in US — Large Civil Aircraft (2nd Complaint) referred to the sixth recital of the Preamble (and also Article I) of the Agreement on Government Procurement, in the context of interpreting the definition of a subsidy found in Article 1 of the SCM Agreement. The Panel concluded that transactions properly characterized as purchases of services are excluded from the scope of Article 1 of the SCM Agreement, which expressly refers to purchases of goods but omits any reference to purchases of services. In the course of its analysis, the Panel observed that “while the SCM Agreement was being negotiated, the parties to the plurilateral Tokyo Round Procurement Code were in the process of extending the scope and coverage of that agreement to cover purchases of services” and referred to the sixth recital of the Preamble (and also to Article I) of the WTO Agreement on Government Procurement.(4) The Panel concluded that when the omission of “purchases” of “services” from the text of Article 1 of the SCM Agreement is read against this historical background, it offers further confirmation that the drafters of that provision could not have removed the express reference to “purchases” of “services” from Article 1 of the SCM Agreement on the understanding that the reference was superfluous.(5)

 

II. Article I    back to top

A. Text of Article I

Article I: Scope and Coverage

1.      This Agreement applies to any law, regulation, procedure or practice regarding any procurement by entities covered by this Agreement, as specified in Appendix I.(1)

 

(footnote original) 1 For each Party, Appendix I is divided into five Annexes:

  • Annex 1 contains central government entities.
  • Annex 2 contains sub-central government entities.
  • Annex 3 contains all other entities that procure in accordance with the provisions of this Agreement.
  • Annex 4 specifies services, whether listed positively or negatively, covered by this Agreement.
  • Annex 5 specifies covered construction services.

Relevant thresholds are specified in each Party’s Annexes.

 

2.      This Agreement applies to procurement by any contractual means, including through such methods as purchase or as lease, rental or hire purchase, with or without an option to buy, including any combination of products and services.

 

3.      Where entities, in the context of procurement covered under this Agreement, require enterprises not included in Appendix I to award contracts in accordance with particular requirements, Article III shall apply mutatis mutandis to such requirements.

 

4.      This Agreement applies to any procurement contract of a value of not less than the relevant threshold specified in Appendix I.


B. Interpretation and Application of Article I

1. General

3.       The Panel in Korea — Procurement provided a general overview of the scope and coverage of the Agreement on Government Procurement:

“The GPA establishes an agreed framework of rights and obligations among its Parties with respect to their national laws, regulations, procedures and practices in the area of government procurement.

 

The obligations under the Agreement apply to procurement:

 

(a)     by procuring entities that each Party has listed in Annexes 1 to 3 of Appendix I relating respectively to “central government entities,” “sub-central government entities” and “other entities”;

 

(b)     of all products; and

 

(c)     of services and construction services that are specified in lists found respectively in Annexes 4 and 5 of Appendix I.

 

Furthermore, GPA coverage under each of the Annexes is contingent upon certain threshold values being exceeded. These threshold values are expressed in terms of Special Drawing Rights (SDRs). GPA coverage under each of the Annexes is also contingent upon the various notes found in the Annexes.”(6)

2. Article I:1

(a) “procurement”

4.       In US — Large Civil Aircraft (2nd Complaint), the Panel found that transactions properly characterized as purchases of services are excluded from the scope of Article 1 of the SCM Agreement, and then proceeded to address the question of whether the transactions at issue were properly characterized as “purchases of services”. In that context, the Panel made reference to prior GATT panel reports examining the question of whether a transaction was properly characterized as a government “procurement”. The Panel in US — Large Civil Aircraft (2nd Complaint) stated:

“In the Panel’s view, whether or not NASA’s R&D contracts with Boeing are properly characterized as a “purchase of services” depends on the nature of the work that Boeing was required to perform under the contracts, and more specifically, whether the R&D that Boeing was required to conduct was principally for its own benefit and use, or whether it was principally for the benefit and use of the U.S. Government (or unrelated third parties). This for several reasons. First, the Panel considers that NASA’s R&D contracts with Boeing should be characterized based on their terms, and the core term of these contracts is the work that Boeing was required to perform. Second, it is inherent in the ordinary meaning of the concept of a “service” that the work performed be for the benefit and use of the entity funding the R&D (or unrelated third parties). Third, characterizing the transactions on the basis of whether the R&D that Boeing was required to conduct was principally for its own benefit and use, or whether it was principally for the benefit and use of the U.S. Government (or unrelated third parties), is broadly consistent with the arguments of the parties and third parties in this case. Fourth, focusing on whether the work performed was principally for the benefit and use of the government (or unrelated third parties) is consistent with prior GATT panel reports examining the question of whether a transaction was properly characterized as a government procurement.”(7)

5.       Regarding the prior GATT panel reports examining the question of whether a transaction was properly characterized as a government procurement, the Panel explained that:

“In US — Sonar Mapping, the panel stated that “{w}hile not intending to offer a definition of government procurement within the meaning of Article I:1(a) {of the Tokyo Round Agreement on Government Procurement}, the Panel felt that in considering the facts of any particular case the following characteristics, none of which alone could be decisive, provide guidance as to whether a transaction should be regarded as government procurement within the meaning of Article I:1(a): payment by government, governmental use of or benefit from the product, government possession and government control over the obtaining of the product”. The panel concluded that in that case, the government agency would “enjoy the benefits of the system’s purchase — Antarctic research and the preparation of seabed maps — which were clearly for government purposes, and the Government can thus be regarded as the ultimate beneficiary of the system”. (GATT Panel Report, US — Sonar Mapping, paras. 4.7 and 4.10 (emphasis added). See also, GATT Panel Report, Norway — Trondheim, paras. 4.8–4.13.)”(8)

(b) “entities covered by this Agreement, as specified in Appendix I”

6.       The Panel on Korea — Procurement examined whether several entities concerned at successive stages with the procurement of airport construction in Korea, specifically the Korean Airport Construction Authority (KOACA), Korea Airports Authority (KAA) and the Inchon International Airport Corporation (IIAC) were within the scope of Korea’s list of “central government entities” as specified in Annex 1 of Korea’s obligations in Appendix I of the Agreement on Government Procurement. The United States contended that the practices of these entities were inconsistent with Korea’s obligations under the Agreement on Government Procurement. In this regard, the Panel noted:

“A critical question we must first address is determining what is explicitly contained in Korea’s Schedule. A preliminary issue is the status of Note 1 to Annex 1, in particular the extent to which Parties can qualify the coverage of listed entities through such Notes. In our view, Members determine, pursuant to negotiation, the scope of the coverage of their commitments as expressed in the Schedules. In this regard, we take note of the panel finding in United States — Restrictions on Imports of Sugar (‘United States — Sugar’) wherein the panel observed that Headnotes could be used to qualify the tariff concessions themselves.”(9)

7.       Accordingly, the Panel noted that:

“[T]he first step of the analysis, therefore, will be to examine Korea’s Schedule and determine whether, within the ordinary meaning of the terms therein, the entity responsible for Inchon International Airport (IIA) procurement is covered. This will include a review of all relevant Annexes and Notes.”(10)

8.       In light of the fact that the Ministry of Construction and Transportation (“MOCT”) was included in the list of central government entities in Annex 1 to Korea’s Schedule, the Panel went on to consider whether “there exists the possibility of the inclusion of certain procurements of an entity which is not listed, due to its relationship with a listed entity”:

“[T]here is a remaining question as to whether there exists the possibility of the inclusion of certain procurements of an entity which is not listed, due to its relationship with a listed entity. These arguably are general issues which arise with respect to any Member’s Schedule regardless of the structure and content of the Schedule and any qualifying Notes.”(11)

9.       The Panel eventually rejected the United States’ argument that KAA could be considered a part of MOCT because it was controlled, at least for the purposes of the IIA project, by MOCT. The Panel noted in this respect that:

“There is no use of the term ‘direct control’ or even ‘control’ in the sense that the United States wishes to use it. It has not been defined in this manner either in the context used in the Tokyo Round Agreement or elsewhere. We cannot agree with the overall US position that a ‘control’ test should be read into the GPA. However, we also do not think that it is an entirely irrelevant question. We think the issue of ‘control’ of one entity over another can be a relevant criterion among others for determining coverage of the GPA, as discussed below.

[W]e do believe that entities that are not listed in an Annex 1 to the GPA whether in the Annex list or through a Note to the Annex, can, nevertheless, be covered under the GPA. We believe that this flows from the fact that an overly narrow interpretation of ‘central government entity’ may result in less coverage under Annex 1 than was intended by the signatories. On the other hand, an overly broad interpretation of the term may result in coverage of entities that were never intended to be covered by signatories.”(12)

10.       The Panel on Korea — Procurement then put forward two criteria for answering the question referenced in paragraph 8 above:

“In the present case, our view is that the relevant questions are: (1) Whether an entity (KAA, in this case) is essentially a part of a listed central government entity (MOCT) — in other words, are the entities, legally unified? and (2) Whether KAA and its successors have been acting on behalf of MOCT. The first test is appropriate because if entities that are essentially a part of, or legally unified with, listed central government entities are not considered covered, it could lead to great uncertainty as to what was actually covered because coverage would be dependent on the internal structure of an entity which may be unknown to the other negotiating parties. The second test is appropriate because procurements that are genuinely undertaken on behalf of a listed entity (as, for example, in the case where a principal/agent relationship exists between the listed entity and another entity) should properly be covered under Annex 1 because they would be considered legally as procurements by MOCT. In our view, it would defeat the objectives of the GPA if an entity listed in a signatory’s Schedule could escape the Agreement’s disciplines by commissioning another agency of government, not itself listed in that signatory’s Schedule, to procure on its behalf.”(13)

11.       With respect to the first question, the Panel, persuaded on balance by the indicia of independence of KAA and its successors, found that KAA was not legally unified with or a part of MOCT, basing itself on the following criteria:

“KAA was established by law as an independent juristic entity; it authored and adopted its own by-laws; it had its own management and employees who were not government employees; it published bid announcements and requests for proposals of its own accord; it concluded contracts with successful bidders on its own behalf; and it funded portions of the IIA project with its own monies.”(14)

12.       With regard to the question whether or not KAA and its successors were acting on behalf of MOCT, at least with respect to the IIA project (i.e. whether the IIA project was really the legal responsibility of MOCT), the Panel, after having reviewed the laws governing construction of the IIA as well as other factual evidence regarding involvement of MOCT in the IIA project, found that:

“[T]here certainly is a role under Korean law for MOCT in the IIA project. It appears to be a role of oversight. We do not think oversight by one governmental entity of a project which has been delegated by law to another entity (which we have already found to be independent and not covered by GPA commitments) results in a conclusion that there is an agency relationship between them.”(15)

13.       The Panel ultimately concluded that:

“[T]he IIA construction project was not covered as the entities engaged in procurement for the project are not covered entities within the meaning of Article I of the GPA. Furthermore, the kind of affiliation that we have concluded is necessary to render an unlisted entity subject to the GPA is not present in this case. Therefore, we do not need to proceed further and make specific findings with respect to the alleged inconsistencies of Korea’s procurement practices in this regard.”(16)

(c) Loose-leaf system for updating appendices

14.       At its meeting of 4 June 1996, the Committee on Government Procurement decided to establish a loose-leaf system with legal effect to periodically update the Appendices to the Agreement on Government Procurement.(17) At its meeting on 24 February 1997, the Committee on Government Procurement agreed on the procedures for subsequent modifications to the loose-leaf system.(18) With a view to providing a starting point for the loose-leaf system, the Secretariat circulated in document GPA/W/35 of 5 February 1997 a draft set of Appendices that reflected the Appendices attached to the Agreement as signed at Marrakesh and the subsequent rectifications, modifications and new concessions made under the procedures adopted by the Interim Committee and under the Agreement itself. An updated version was made available to Parties in document GPA/W/35/Rev. 1 of 8 July 1999. The Procedures for Future Changes to the Loose-Leaf System for Appendices to the Agreement are set out in document GPA/W/110 of 7 March 2000.

15.       In addition to being made available in hard-copy form, the loose-leaf system and future new or replacement pages are circulated to parties and other WTO Members in electronic form through the WTO Document Dissemination Facility. An up-to-date copy of the loose-leaf system is also available to the general public through the government procurement site on the WTO Home Page on the Internet.(19)

16.       In 2009, the Status of Notifications by Parties to the GPA, including with respect to: (i) changes in national laws and regulations; (ii) statistical reports; (iii) rectifications and modifications to Parties’ Appendices; and (iv) the value of applicable thresholds in national currencies was set out in a Note by the Secretariat.(20)

3. Article I:3

17.       In Korea — Procurement, the Panel found that Article I:3 was not applicable to the situation before it. The Panel stated that:

“We note that Korea raised the question of the applicability of GPA Article I:3 to the present situation. This provision reads as follows:

 

“Where entities, in the context of procurement covered under this Agreement, require enterprises not included in Appendix I to award contracts in accordance with particular requirements, Article III shall apply mutatis mutandis to such requirements.”

 

This provision applies “in the context of procurement covered by this Agreement.” This implies that it is already agreed that there is a covered entity with procurement under its responsibility. Here the question is whether the entity in question, KAA, is covered. The provision also refers to a covered entity requiring a particular enterprise to award contracts for a project. It is unclear what guidance this provides when reviewing the relationship of two entities. Thus, we do not think this provision provides guidance in the present situation.”(21)

4. Article I:4

18.       At its meeting of 27 February 1996, the Committee on Government Procurement decided on the “Modalities for Notifying Threshold Figures in National Currencies”.(22)

19.       In 2009, the Status of Notifications by Parties to the GPA, including with respect to: (i) changes in national laws and regulations; (ii) statistical reports; (iii) rectifications and modifications to Parties’ Appendices; and (iv) the value of applicable thresholds in national currencies was set out in a Note by the Secretariat.(23)

 

III. Article II     back to top

A. Text of Article II

Article II: Valuation of Contracts

1.       The following provisions shall apply in determining the value of contracts(2) for purposes of implementing this Agreement.

 

(footnote original) 2 This Agreement shall apply to any procurement contract for which the contract value is estimated to equal or exceed the threshold at the time of publication of the notice in accordance with Article IX.

 

2.      Valuation shall take into account all forms of remuneration, including any premiums, fees, commissions and interest receivable.

 

3.      The selection of the valuation method by the entity shall not be used, nor shall any procurement requirement be divided, with the intention of avoiding the application of this Agreement.

 

4.      If an individual requirement for a procurement results in the award of more than one contract, or in contracts being awarded in separate parts, the basis for valuation shall be either:

 

(a)     the actual value of similar recurring contracts concluded over the previous fiscal year or 12 months adjusted, where possible, for anticipated changes in quantity and value over the subsequent 12 months; or

 

(b)     the estimated value of recurring contracts in the fiscal year or 12 months subsequent to the initial contract.

 

5.      In cases of contracts for the lease, rental or hire purchase of products or services, or in the case of contracts which do not specify a total price, the basis for valuation shall be:

 

(a)     in the case of fixed-term contracts, where their term is 12 months or less, the total contract value for their duration, or, where their term exceeds 12 months, their total value including the estimated residual value;

 

(b)     in the case of contracts for an indefinite period, the monthly instalment multiplied by 48.

 

If there is any doubt, the second basis for valuation, namely (b), is to be used.

 

6.      In cases where an intended procurement specifies the need for option clauses, the basis for valuation shall be the total value of the maximum permissible procurement, inclusive of optional purchases.


B. Interpretation and Application of Article II

No jurisprudence or decision of a competent WTO body.

 

IV. Article III    back to top

A. Text of Article III

Article III: National Treatment and Non-discrimination

1.     With respect to all laws, regulations, procedures and practices regarding government procurement covered by this Agreement, each Party shall provide immediately and unconditionally to the products, services and suppliers of other Parties offering products or services of the Parties, treatment no less favourable than:

 

(a)     that accorded to domestic products, services and suppliers; and

 

(b)     that accorded to products, services and suppliers of any other Party.

 

2.      With respect to all laws, regulations, procedures and practices regarding government procurement covered by this Agreement, each Party shall ensure:

 

(a)     that its entities shall not treat a locally-established supplier less favourably than another locally-established supplier on the basis of degree of foreign affiliation or ownership; and

 

(b)     that its entities shall not discriminate against locally-established suppliers on the basis of the country of production of the good or service being supplied, provided that the country of production is a Party to the Agreement in accordance with the provisions of Article IV.

 

3.      The provisions of paragraphs 1 and 2 shall not apply to customs duties and charges of any kind imposed on or in connection with importation, the method of levying such duties and charges, other import regulations and formalities, and measures affecting trade in services other than laws, regulations, procedures and practices regarding government procurement covered by this Agreement.


B. Interpretation and Application of Article III

No jurisprudence or decision of a competent WTO body.

 

V. Article IV     back to top

A. Text of Article IV

Article IV: Rules of Origin

1.      A Party shall not apply rules of origin to products or services imported or supplied for purposes of government procurement covered by this Agreement from other Parties, which are different from the rules of origin applied in the normal course of trade and at the time of the transaction in question to imports or supplies of the same products or services from the same Parties.

 

2.      Following the conclusion of the work programme for the harmonization of rules of origin for goods to be undertaken under the Agreement on Rules of Origin in Annex 1A of the Agreement Establishing the World Trade Organization (hereinafter referred to as “WTO Agreement”) and negotiations regarding trade in services, Parties shall take the results of that work programme and those negotiations into account in amending paragraph 1 as appropriate.


B. Interpretation and Application of Article IV

No jurisprudence or decision of a competent WTO body.

 

VI. Article V     back to top

A. Text of Article V

Article V: Special and Differential Treatment for Developing Countries

Objectives

 

1.      Parties shall, in the implementation and administration of this Agreement, through the provisions set out in this Article, duly take into account the development, financial and trade needs of developing countries, in particular least-developed countries, in their need to:

 

(a)     safeguard their balance-of-payments position and ensure a level of reserves adequate for the implementation of programmes of economic development;

 

(b)     promote the establishment or development of domestic industries including the development of small-scale and cottage industries in rural or backward areas; and economic development of other sectors of the economy;

 

(c)     support industrial units so long as they are wholly or substantially dependent on government procurement; and

 

(d)     encourage their economic development through regional or global arrangements among developing countries presented to the Ministerial Conference of the World Trade Organization (hereinafter referred to as the “WTO”) and not disapproved by it.

 

2.      Consistently with the provisions of this Agreement, each Party shall, in the preparation and application of laws, regulations and procedures affecting government procurement, facilitate increased imports from developing countries, bearing in mind the special problems of least-developed countries and of those countries at low stages of economic development.

 

Coverage

 

3.      With a view to ensuring that developing countries are able to adhere to this Agreement on terms consistent with their development, financial and trade needs, the objectives listed in paragraph 1 shall be duly taken into account in the course of negotiations with respect to the procurement of developing countries to be covered by the provisions of this Agreement. Developed countries, in the preparation of their coverage lists under the provisions of this Agreement, shall endeavour to include entities procuring products and services of export interest to developing countries.

 

Agreed Exclusions

 

4.      A developing country may negotiate with other participants in negotiations under this Agreement mutually acceptable exclusions from the rules on national treatment with respect to certain entities, products or services that are included in its coverage lists, having regard to the particular circumstances of each case. In such negotiations, the considerations mentioned in subparagraphs 1(a) through 1(c) shall be duly taken into account. A developing country participating in regional or global arrangements among developing countries referred to in subparagraph 1(d) may also negotiate exclusions to its lists, having regard to the particular circumstances of each case, taking into account, inter alia, the provisions on government procurement provided for in the regional or global arrangements concerned and, in particular, products or services which may be subject to common industrial development programmes.

 

5.      After entry into force of this Agreement, a developing country Party may modify its coverage lists in accordance with the provisions for modification of such lists contained in paragraph 6 of Article XXIV, having regard to its development, financial and trade needs, or may request the Committee on Government Procurement (hereinafter referred to as “the Committee”) to grant exclusions from the rules on national treatment for certain entities, products or services that are included in its coverage lists, having regard to the particular circumstances of each case and taking duly into account the provisions of subparagraphs 1(a) through 1(c). After entry into force of this Agreement, a developing country Party may also request the Committee to grant exclusions for certain entities, products or services that are included in its coverage lists in the light of its participation in regional or global arrangements among developing countries, having regard to the particular circumstances of each case and taking duly into account the provisions of subparagraph 1 (d). Each request to the Committee by a developing country Party relating to modification of a list shall be accompanied by documentation relevant to the request or by such information as may be necessary for consideration of the matter.

 

6.      Paragraphs 4 and 5 shall apply mutatis mutandis to developing countries acceding to this Agreement after its entry into force.

 

7.      Such agreed exclusions as mentioned in paragraphs 4, 5 and 6 shall be subject to review in accordance with the provisions of paragraph 14 below.

 

Technical Assistance for Developing Country Parties

 

8.      Each developed country Party shall, upon request, provide all technical assistance which it may deem appropriate to developing country Parties in resolving their problems in the field of government procurement.

 

9.      This assistance, which shall be provided on the basis of non-discrimination among developing country Parties, shall relate, inter alia, to:

 

  • the solution of particular technical problems relating to the award of a specific contract; and
     
  • any other problem which the Party making the request and another Party agree to deal with in the context of this assistance.

 

10.      Technical assistance referred to in paragraphs 8 and 9 would include translation of qualification documentation and tenders made by suppliers of developing country Parties into an official language of the WTO designated by the entity, unless developed country Parties deem translation to be burdensome, and in that case explanation shall be given to developing country Parties upon their request addressed either to the developed country Parties or to their entities.

 

Information Centres

 

11.      Developed country Parties shall establish, individually or jointly, information centres to respond to reasonable requests from developing country Parties for information relating to, inter alia, laws, regulations, procedures and practices regarding government procurement, notices about intended procurements which have been published, addresses of the entities covered by this Agreement, and the nature and volume of products or services procured or to be procured, including available information about future tenders. The Committee may also set up an information centre.

 

Special Treatment for Least-Developed Countries

 

12.      Having regard to paragraph 6 of the Decision of the CONTRACTING PARTIES to GATT 1947 of 28 November 1979 on Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries (BISD 26S/203–205), special treatment shall be granted to least-developed country Parties and to the suppliers in those Parties with respect to products or services originating in those Parties, in the context of any general or specific measures in favour of developing country Parties. A Party may also grant the benefits of this Agreement to suppliers in least-developed countries which are not Parties, with respect to products or services originating in those countries.

 

13.      Each developed country Party shall, upon request, provide assistance which it may deem appropriate to potential tenderers in least-developed countries in submitting their tenders and selecting the products or services which are likely to be of interest to its entities as well as to suppliers in least-developed countries, and likewise assist them to comply with technical regulations and standards relating to products or services which are the subject of the intended procurement.

 

Review

 

14.      The Committee shall review annually the operation and effectiveness of this Article and, after each three years of its operation on the basis of reports to be submitted by Parties, shall carry out a major review in order to evaluate its effects. As part of the three-yearly reviews and with a view to achieving the maximum implementation of the provisions of this Agreement, including in particular Article III, and having regard to the development, financial and trade situation of the developing countries concerned, the Committee shall examine whether exclusions provided for in accordance with the provisions of paragraphs 4 through 6 of this Article shall be modified or extended.

 

15.      In the course of further rounds of negotiations in accordance with the provisions of paragraph 7 of Article XXIV, each developing country Party shall give consideration to the possibility of enlarging its coverage lists, having regard to its economic, financial and trade situation.


B. Interpretation and Application of Article V

20.     In 2009, the WTO Secretariat’s technical assistance activities relevant to the GPA were set out in a Note by the Secretariat.(24)

Footnotes:

1. The provisionally agreed revised text of the Agreement on Government Procurement was circulated on 16 December 2010 as WTO document GPA/W/313 (see also GPA/W/313/Corr.1 of 13 January 2011). The provisionally agreed revised text is reproduced in Section XXVIII of this Chapter, entitled “Text of the Revision of the Agreement on Government Procurement as at 13 December 2010”. For information on the background to the provisionally agreed revised text of the Agreement on Government Procurement, see the Section of this Chapter on Article XXIV:7(b). back to text
2. (footnote original) The Informal Working Group on Negotiations was originally established in May 1985 to improve the text of the Tokyo Round Agreement. back to text
3. Panel Report, Korea — Procurement, para. 2.2. back to text
4. Panel Report, US — Large Civil Aircraft (2nd Complaint), para. 7.967. back to text
5.  Panel Report, US — Large Civil Aircraft (2nd Complaint), para. 7.969. back to text
6. Panel Report, Korea — Procurement, paras. 2.7–2.9. back to text
7. Panel Report, US — Large Civil Aircraft (2nd Complaint), para. 7.978. back to text
8. Panel Report, US — Large Civil Aircraft (2nd Complaint), footnote 2471. back to text
9. Panel Report, Korea — Procurement,  para. 7.30.back to text
10. Panel Report, Korea — Procurement, para. 7.12. back to text
11. Panel Report, Korea — Procurement, para. 7.49. back to text
12. Panel Report, Korea — Procurement, paras. 7.57–7.58. back to text
13. Panel Report, Korea — Procurement, para. 7.59. back to text
14. Panel Report, Korea — Procurement, para. 7.60. back to text
15. Panel Report, Korea — Procurement, para. 7.70. back to text
16. Panel Report, Korea — Procurement, para. 7.83. back to text
17. GPA/M/2, Section E. back to text
18. GPA/M/5, Section D. back to text
19. GPA/19, para. 7. See http://www.wto.org/english/tratop_e/gproc_e/appendices_e.htm. back to text
20. GPA/W/306 of 28 September 2009 and GPA/W/306/Corr.1 of 13 October 2009. back to text
21. Panel Report, Korea — Procurement, footnote 724. back to text
22. GPA/M/1, Section B. The Text of the Decision can be found in GPA/1, Annex 3. back to text
23.  GPA/W/306 of 28 September 2009 and  GPA/W/306/Corr.1 of 13 October 2009. back to text
24. GPA/W/308
of 6 October 2009. back to text

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