Contract
TRAC T A TENBLAD
VAN HET
K O N I N K R I J K D E R N E D E R L A N D E N
JAARGANG 2013 Nr. 76
A. TITEL
Overeenkomst inzake overheidsopdrachten; Marrakesh, 15 april 1994
B. TEKST
De Engelse tekst van de Overeenkomst is geplaatst in Trb. 1994, 235, blz. 406 - 435.
Voor een correctie, zie Trb. 1996, 325.
Op 30 maart 2012 is te Genève een Protocol tot wijziging van de Overeenkomst tot stand gekomen. De Engelse tekst2) van dit Protocol luidt als volgt:
Protocol amending the Agreement on Government Procurement
The Parties to the Agreement on Government Procurement, done at Marrakesh on 15 April 1994, (hereinafter referred to as “the 1994 Agree- ment”),
Having undertaken further negotiations pursuant to Article XXIV:7(b) and (c) of the 1994 Agreement;
1) De Overeenkomst inzake overheidsopdrachten, die als onderdeel van Bij- lage 4 bij de Overeenkomst tot oprichting van de Wereldhandelsorganisatie is bekendgemaakt onder het systematisch nummer 46(1994) Nr. 1 - 4, heeft in dit Tractatenblad een eigen systematisch nummer gekregen.
2) De Franse en de Spaanse tekst zijn niet opgenomen.
De tekst van de Aanhangsels is niet opgenomen. Deze ligt ter inzage bij de Afdeling Verdragen van het Ministerie van Buitenlandse Zaken.
Het voor eensluidend gewaarmerkt afschrift is nog niet ontvangen. In de tekst kunnen derhalve onjuistheden voorkomen die in een volgend Tractatenblad zul- len worden gecorrigeerd.
1. The Preamble, Articles I through XXIV, and Appendices to the 1994 Agreement shall be deleted and replaced by the provisions as set forth in the Annex hereto.
2. This Protocol shall be open for acceptance by the Parties to the 1994 Agreement.
3. This Protocol shall enter into force for those Parties to the 1994 Agreement that have deposited their respective instruments of accept- ance of this Protocol, on the 30th day following such deposit by two thirds of the Parties to the 1994 Agreement. Thereafter this Protocol shall enter into force for each Party to the 1994 Agreement which has deposited its instrument of acceptance of this Protocol, on the 30th day following the date of such deposit.
4. This Protocol shall be deposited with the Director-General of the WTO, who shall promptly furnish to each Party to the 1994 Agreement a certified true copy of this Protocol, and a notification of each accept- ance thereof.
5. This Protocol shall be registered in accordance with the provisions of Article 102 of the Charter of the United Nations.
DONE at Geneva this 30th day of March two thousand and twelve in a single copy, in the English, French and Spanish languages, each text being authentic, except as otherwise specified with respect to the Appen- dices hereto.
Annex to the Protocol amending the Agreement on Government Procurement
Preamble
The Parties to this Agreement (hereinafter referred to as “the Parties”),
Recognizing the need for an effective multilateral framework for gov- ernment procurement, with a view to achieving greater liberalization and expansion of, and improving the framework for, the conduct of interna- tional trade;
Recognizing that measures regarding government procurement should not be prepared, adopted or applied so as to afford protection to dom- estic suppliers, goods or services, or to discriminate among foreign sup- pliers, goods or services;
Recognizing that the procedural commitments under this Agreement should be sufficiently flexible to accommodate the specific circum- stances of each Party;
Recognizing the need to take into account the development, financial and trade needs of developing countries, in particular the least developed countries;
Recognizing the importance of transparent measures regarding gov- ernment procurement, of carrying out procurements in a transparent and impartial manner and of avoiding conflicts of interest and corrupt prac- tices, in accordance with applicable international instruments, such as the United Nations Convention Against Corruption;
Recognizing the importance of using, and encouraging the use of, electronic means for procurement covered by this Agreement;
Desiring to encourage acceptance of and accession to this Agreement by WTO Members not party to it;
Hereby agree as follows:
Article I
Definitions
For purposes of this Agreement:
a) commercial goods or services means goods or services of a type generally sold or offered for sale in the commercial marketplace to, and customarily purchased by, non-governmental buyers for non- governmental purposes;
b) Committee means the Committee on Government Procurement established by Article XXI:1;
c) construction service means a service that has as its objective the realization by whatever means of civil or building works, based on Divi- sion 51 of the United Nations Provisional Central Product Classification (CPC);
d) country includes any separate customs territory that is a Party to this Agreement. In the case of a separate customs territory that is a Party to this Agreement, where an expression in this Agreement is qualified by the term “national”, such expression shall be read as pertaining to that customs territory, unless otherwise specified;
e) days means calendar days;
f) electronic auction means an iterative process that involves the use of electronic means for the presentation by suppliers of either new
prices, or new values for quantifiable non-price elements of the tender related to the evaluation criteria, or both, resulting in a ranking or re-ranking of tenders;
g) in writing or written means any worded or numbered expression that can be read, reproduced and later communicated. It may include electronically transmitted and stored information;
h) limited tendering means a procurement method whereby the pro- curing entity contacts a supplier or suppliers of its choice;
i) measure means any law, regulation, procedure, administrative guid- ance or practice, or any action of a procuring entity relating to a cov- ered procurement;
j) multi-use list means a list of suppliers that a procuring entity has determined satisfy the conditions for participation in that list, and that the procuring entity intends to use more than once;
k) notice of intended procurement means a notice published by a pro- curing entity inviting interested suppliers to submit a request for partici- pation, a tender, or both;
l) offset means any condition or undertaking that encourages local development or improves a Party’s balance-of-payments accounts, such as the use of domestic content, the licensing of technology, investment, counter-trade and similar action or requirement;
m) open tendering means a procurement method whereby all inter- ested suppliers may submit a tender;
n) person means a natural person or a juridical person;
o) procuring entity means an entity covered under a Party’s Annex 1, 2 or 3 to Appendix I;
p) qualified supplier means a supplier that a procuring entity recog- nizes as having satisfied the conditions for participation;
q) selective tendering means a procurement method whereby only qualified suppliers are invited by the procuring entity to submit a tender;
r) services includes construction services, unless otherwise specified;
s) standard means a document approved by a recognized body that provides for common and repeated use, rules, guidelines or characteris- tics for goods or services, or related processes and production methods, with which compliance is not mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements as they apply to a good, service, process or production method;
t) supplier means a person or group of persons that provides or could provide goods or services; and
u) technical specification means a tendering requirement that:
(i) lays down the characteristics of goods or services to be pro- cured, including quality, performance, safety and dimensions, or the processes and methods for their production or provision; or
(ii) addresses terminology, symbols, packaging, marking or label- ling requirements, as they apply to a good or service.
Scope and Coverage
Application of Agreement
1. This Agreement applies to any measure regarding covered procure- ment, whether or not it is conducted exclusively or partially by elec- tronic means.
2. For the purposes of this Agreement, covered procurement means procurement for governmental purposes:
a) of goods, services, or any combination thereof:
(i) as specified in each Party’s annexes to Appendix I; and
(ii) not procured with a view to commercial sale or resale, or for use in the production or supply of goods or services for com- mercial sale or resale;
b) by any contractual means, including: purchase; lease; and rental or hire purchase, with or without an option to buy;
c) for which the value, as estimated in accordance with paragraphs 6 through 8, equals or exceeds the relevant threshold specified in a Party’s annexes to Appendix I, at the time of publication of a notice in accord- ance with Article VII;
d) by a procuring entity; and
e) that is not otherwise excluded from coverage in paragraph 3 or a Party’s annexes to Appendix I.
3. Except where provided otherwise in a Party’s annexes to Appen- dix I, this Agreement does not apply to:
a) the acquisition or rental of land, existing buildings or other immov- able property or the rights thereon;
b) non-contractual agreements or any form of assistance that a Party provides, including cooperative agreements, grants, loans, equity infu- sions, guarantees and fiscal incentives;
c) the procurement or acquisition of fiscal agency or depository ser- vices, liquidation and management services for regulated financial insti- tutions or services related to the sale, redemption and distribution of public debt, including loans and government bonds, notes and other securities;
d) public employment contracts;
e) procurement conducted:
(i) for the specific purpose of providing international assistance, including development aid;
(ii) under the particular procedure or condition of an international agreement relating to the stationing of troops or relating to the joint implementation by the signatory countries of a project; or
(iii) under the particular procedure or condition of an international organization, or funded by international grants, loans or other assistance where the applicable procedure or condition would be inconsistent with this Agreement.
4. Each Party shall specify the following information in its annexes to Appendix I:
a) in Annex 1, the central government entities whose procurement is covered by this Agreement;
b) in Annex 2, the sub-central government entities whose procure- ment is covered by this Agreement;
c) in Annex 3, all other entities whose procurement is covered by this Agreement;
d) in Annex 4, the goods covered by this Agreement;
e) in Annex 5, the services, other than construction services, covered by this Agreement;
f) in Annex 6, the construction services covered by this Agreement; and
g) in Annex 7, any General Notes.
5. Where a procuring entity, in the context of covered procurement, requires persons not covered under a Party’s annexes to Appendix I to procure in accordance with particular requirements, Article IV shall apply mutatis mutandis to such requirements.
Valuation
6. In estimating the value of a procurement for the purpose of ascer- taining whether it is a covered procurement, a procuring entity shall:
a) neither divide a procurement into separate procurements nor select or use a particular valuation method for estimating the value of a pro- curement with the intention of totally or partially excluding it from the application of this Agreement; and
b) include the estimated maximum total value of the procurement over its entire duration, whether awarded to one or more suppliers, tak- ing into account all forms of remuneration, including:
(i) premiums, fees, commissions and interest; and
(ii) where the procurement provides for the possibility of options, the total value of such options.
7. Where an individual requirement for a procurement results in the award of more than one contract, or in the award of contracts in sepa- rate parts (hereinafter referred to as “recurring contracts”), the calcula- tion of the estimated maximum total value shall be based on:
a) the value of recurring contracts of the same type of good or ser- vice awarded during the preceding 12 months or the procuring entity’s preceding fiscal year, adjusted, where possible, to take into account
b) the estimated value of recurring contracts of the same type of good or service to be awarded during the 12 months following the initial con- tract award or the procuring entity’s fiscal year.
8. In the case of procurement by lease, rental or hire purchase of goods or services, or procurement for which a total price is not speci- fied, the basis for valuation shall be:
a) in the case of a fixed-term contract:
(i) where the term of the contract is 12 months or less, the total estimated maximum value for its duration; or
(ii) where the term of the contract exceeds 12 months, the total esti- mated maximum value, including any estimated residual value;
b) where the contract is for an indefinite period, the estimated monthly instalment multiplied by 48; and
c) where it is not certain whether the contract is to be a fixed-term contract, subparagraph (b) shall be used.
Article III
Security and General Exceptions
1. Nothing in this Agreement shall be construed to prevent any Party from taking any action or not disclosing any information that it consid- ers necessary for the protection of its essential security interests relating to the procurement of arms, ammunition or war materials, or to procure- ment indispensable for national security or for national defence pur- poses.
2. Subject to the requirement that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable dis- crimination between Parties where the same conditions prevail or a dis- guised restriction on international trade, nothing in this Agreement shall be construed to prevent any Party from imposing or enforcing measures:
a) necessary to protect public morals, order or safety;
b) necessary to protect human, animal or plant life or health;
c) necessary to protect intellectual property; or
d) relating to goods or services of persons with disabilities, philan- thropic institutions or prison labour.
Article IV
General Principles
1. With respect to any measure regarding covered procurement, each Party, including its procuring entities, shall accord immediately and unconditionally to the goods and services of any other Party and to the suppliers of any other Party offering the goods or services of any Party, treatment no less favourable than the treatment the Party, including its procuring entities, accords to:
a) domestic goods, services and suppliers; and
b) goods, services and suppliers of any other Party.
2. With respect to any measure regarding covered procurement, a Party, including its procuring entities, shall not:
a) treat a locally established supplier less favourably than another locally established supplier on the basis of the degree of foreign affilia- tion or ownership; or
b) discriminate against a locally established supplier on the basis that the goods or services offered by that supplier for a particular procure- ment are goods or services of any other Party.
Use of Electronic Means
3. When conducting covered procurement by electronic means, a pro- curing entity shall:
a) ensure that the procurement is conducted using information tech- nology systems and software, including those related to authentication and encryption of information, that are generally available and interop- erable with other generally available information technology systems and software; and
b) maintain mechanisms that ensure the integrity of requests for par- ticipation and tenders, including establishment of the time of receipt and the prevention of inappropriate access.
Conduct of Procurement
4. A procuring entity shall conduct covered procurement in a trans- parent and impartial manner that:
a) is consistent with this Agreement, using methods such as open ten- dering, selective tendering and limited tendering;
b) avoids conflicts of interest; and
c) prevents corrupt practices.
5. For purposes of covered procurement, a Party shall not apply rules of origin to goods or services imported from or supplied from another Party that are different from the rules of origin the Party applies at the same time in the normal course of trade to imports or supplies of the same goods or services from the same Party.
Offsets
6. With regard to covered procurement, a Party, including its procur- ing entities, shall not seek, take account of, impose or enforce any off- set.
Measures Not Specific to Procurement
7. Paragraphs 1 and 2 shall not apply to: customs duties and charges of any kind imposed on, or in connection with, importation; the method of levying such duties and charges; other import regulations or formali- ties and measures affecting trade in services other than measures gov- erning covered procurement.
Article V
Developing Countries
1. In negotiations on accession to, and in the implementation and administration of, this Agreement, the Parties shall give special consi- deration to the development, financial and trade needs and circumstances of developing countries and least developed countries (collectively refer- red to hereinafter as “developing countries”, unless specifically identi- fied otherwise), recognizing that these may differ significantly from country to country. As provided for in this Article and on request, the Parties shall accord special and differential treatment to:
a) least developed countries; and
b) any other developing country, where and to the extent that this spe- cial and differential treatment meets its development needs.
2. Upon accession by a developing country to this Agreement, each Party shall provide immediately to the goods, services and suppliers of that country the most favourable coverage that the Party provides under its annexes to Appendix I to any other Party to this Agreement, subject to any terms negotiated between the Party and the developing country in order to maintain an appropriate balance of opportunities under this Agreement.
3. Based on its development needs, and with the agreement of the Parties, a developing country may adopt or maintain one or more of the following transitional measures, during a transition period and in accord- ance with a schedule, set out in its relevant annexes to Appendix I, and applied in a manner that does not discriminate among the other Parties:
a) a price preference programme, provided that the programme:
(i) provides a preference only for the part of the tender incorporat- ing goods or services originating in the developing country applying the preference or goods or services originating in other developing countries in respect of which the developing coun- try applying the preference has an obligation to provide national treatment under a preferential agreement, provided that where the other developing country is a Party to this Agreement, such treatment would be subject to any conditions set by the Com- mittee; and
(ii) is transparent, and the preference and its application in the pro- curement are clearly described in the notice of intended pro- curement;
b) an offset, provided that any requirement for, or consideration of, the imposition of the offset is clearly stated in the notice of intended pro- curement;
c) the phased-in addition of specific entities or sectors; and
d) a threshold that is higher than its permanent threshold.
4. In negotiations on accession to this Agreement, the Parties may agree to the delayed application of any specific obligation in this Agree- ment, other than Article IV:1(b), by the acceding developing country while that country implements the obligation. The implementation per- iod shall be:
a) for a least developed country, five years after its accession to this Agreement; and
b) for any other developing country, only the period necessary to implement the specific obligation and not to exceed three years.
5. Any developing country that has negotiated an implementation period for an obligation under paragraph 4 shall list in its Annex 7 to Appendix I the agreed implementation period, the specific obligation subject to the implementation period and any interim obligation with which it has agreed to comply during the implementation period.
6. After this Agreement has entered into force for a developing coun- try, the Committee, on request of the developing country, may:
a) extend the transition period for a measure adopted or maintained under paragraph 3 or any implementation period negotiated under para- graph 4; or
7. A developing country that has negotiated a transitional measure under paragraph 3 or 6, an implementation period under paragraph 4 or any extension under paragraph 6 shall take such steps during the transi- tion period or implementation period as may be necessary to ensure that it is in compliance with this Agreement at the end of any such period. The developing country shall promptly notify the Committee of each step.
8. The Parties shall give due consideration to any request by a devel- oping country for technical cooperation and capacity building in relation to that country’s accession to, or implementation of, this Agreement.
9. The Committee may develop procedures for the implementation of this Article. Such procedures may include provisions for voting on deci- sions relating to requests under paragraph 6.
10. The Committee shall review the operation and effectiveness of this Article every five years.
Article VI
Information on the Procurement System
1. Each Party shall:
a) promptly publish any law, regulation, judicial decision, administra- tive ruling of general application, standard contract clause mandated by law or regulation and incorporated by reference in notices or tender documentation and procedure regarding covered procurement, and any modifications thereof, in an officially designated electronic or paper medium that is widely disseminated and remains readily accessible to the public; and
b) provide an explanation thereof to any Party, on request.
2. Each Party shall list:
a) in Appendix II, the electronic or paper media in which the Party publishes the information described in paragraph 1;
b) in Appendix III, the electronic or paper media in which the Party publishes the notices required by Articles VII, IX:7 and XVI:2; and
c) in Appendix IV, the website address or addresses where the Party publishes:
(i) its procurement statistics pursuant to Article XVI:5; or
(ii) its notices concerning awarded contracts pursuant to Article XVI:6.
Article VII
Notices
Notice of Intended Procurement
1. For each covered procurement, a procuring entity shall publish a notice of intended procurement in the appropriate paper or electronic medium listed in Appendix III, except in the circumstances described in Article XIII. Such medium shall be widely disseminated and such notices shall remain readily accessible to the public, at least until expi- ration of the time-period indicated in the notice. The notices shall:
a) for procuring entities covered under Annex 1, be accessible by electronic means free of charge through a single point of access, for at least any minimum period of time specified in Appendix III; and
b) for procuring entities covered under Annex 2 or 3, where accessi- ble by electronic means, be provided, at least, through links in a gate- way electronic site that is accessible free of charge.
Parties, including their procuring entities covered under Annex 2 or 3, are encouraged to publish their notices by electronic means free of charge through a single point of access.
2. Except as otherwise provided in this Agreement, each notice of intended procurement shall include:
a) the name and address of the procuring entity and other information necessary to contact the procuring entity and obtain all relevant docu- ments relating to the procurement, and their cost and terms of payment, if any;
b) a description of the procurement, including the nature and the quantity of the goods or services to be procured or, where the quantity is not known, the estimated quantity;
c) for recurring contracts, an estimate, if possible, of the timing of subsequent notices of intended procurement;
d) a description of any options;
e) the time-frame for delivery of goods or services or the duration of the contract;
f) the procurement method that will be used and whether it will involve negotiation or electronic auction;
g) where applicable, the address and any final date for the submission of requests for participation in the procurement;
h) the address and the final date for the submission of tenders;
i) the language or languages in which tenders or requests for partici- pation may be submitted, if they may be submitted in a language other than an official language of the Party of the procuring entity;
j) a list and brief description of any conditions for participation of suppliers, including any requirements for specific documents or certifi- cations to be provided by suppliers in connection therewith, unless such requirements are included in tender documentation that is made avail- able to all interested suppliers at the same time as the notice of intended procurement;
k) where, pursuant to Article IX, a procuring entity intends to select a limited number of qualified suppliers to be invited to tender, the cri- teria that will be used to select them and, where applicable, any limita- tion on the number of suppliers that will be permitted to tender; and
l) an indication that the procurement is covered by this Agreement.
Summary Notice
3. For each case of intended procurement, a procuring entity shall publish a summary notice that is readily accessible, at the same time as the publication of the notice of intended procurement, in one of the WTO languages. The summary notice shall contain at least the follow- ing information:
a) the subject-matter of the procurement;
b) the final date for the submission of tenders or, where applicable, any final date for the submission of requests for participation in the pro- curement or for inclusion on a multi-use list; and
c) the address from which documents relating to the procurement may be requested.
Notice of Planned Procurement
4. Procuring entities are encouraged to publish in the appropriate paper or electronic medium listed in Appendix III as early as possible in each fiscal year a notice regarding their future procurement plans (here- inafter referred to as “notice of planned procurement”). The notice of planned procurement should include the subject-matter of the procure- ment and the planned date of the publication of the notice of intended procurement.
5. A procuring entity covered under Annex 2 or 3 may use a notice of planned procurement as a notice of intended procurement provided that the notice of planned procurement includes as much of the informa- tion referred to in paragraph 2 as is available to the entity and a state- ment that interested suppliers should express their interest in the pro- curement to the procuring entity.
Conditions for Participation
1. A procuring entity shall limit any conditions for participation in a procurement to those that are essential to ensure that a supplier has the legal and financial capacities and the commercial and technical abilities to undertake the relevant procurement.
2. In establishing the conditions for participation, a procuring entity:
a) shall not impose the condition that, in order for a supplier to par- ticipate in a procurement, the supplier has previously been awarded one or more contracts by a procuring entity of a given Party; and
b) may require relevant prior experience where essential to meet the requirements of the procurement.
3. In assessing whether a supplier satisfies the conditions for partici- pation, a procuring entity:
a) shall evaluate the financial capacity and the commercial and tech- nical abilities of a supplier on the basis of that supplier’s business activi- ties both inside and outside the territory of the Party of the procuring entity; and
b) shall base its evaluation on the conditions that the procuring entity has specified in advance in notices or tender documentation.
4. Where there is supporting evidence, a Party, including its procur- ing entities, may exclude a supplier on grounds such as:
a) bankruptcy;
b) false declarations;
c) significant or persistent deficiencies in performance of any substan- tive requirement or obligation under a prior contract or contracts;
d) final judgments in respect of serious crimes or other serious of- fences;
e) professional misconduct or acts or omissions that adversely reflect on the commercial integrity of the supplier; or
f) failure to pay taxes.
Article IX
Qualification of Suppliers Registration Systems and Qualification Procedures
1. A Party, including its procuring entities, may maintain a supplier registration system under which interested suppliers are required to reg- ister and provide certain information.
2. Each Party shall ensure that:
a) its procuring entities make efforts to minimize differences in their qualification procedures; and
b) where its procuring entities maintain registration systems, the enti- ties make efforts to minimize differences in their registration systems.
3. A Party, including its procuring entities, shall not adopt or apply any registration system or qualification procedure with the purpose or the effect of creating unnecessary obstacles to the participation of sup- pliers of another Party in its procurement.
Selective Tendering
4. Where a procuring entity intends to use selective tendering, the entity shall:
a) include in the notice of intended procurement at least the informa- tion specified in Article VII:2(a), (b), (f), (g), (j), (k) and (l) and invite suppliers to submit a request for participation; and
b) provide, by the commencement of the time-period for tendering, at least the information in Article VII:2 (c), (d), (e), (h) and (i) to the quali- fied suppliers that it notifies as specified in Article XI:3(b).
5. A procuring entity shall allow all qualified suppliers to participate in a particular procurement, unless the procuring entity states in the notice of intended procurement any limitation on the number of suppli- ers that will be permitted to tender and the criteria for selecting the lim- ited number of suppliers.
6. Where the tender documentation is not made publicly available from the date of publication of the notice referred to in paragraph 4, a procuring entity shall ensure that those documents are made available at the same time to all the qualified suppliers selected in accordance with paragraph 5.
Multi-Use Lists
7. A procuring entity may maintain a multi-use list of suppliers, provided that a notice inviting interested suppliers to apply for inclusion on the list is:
a) published annually; and
b) where published by electronic means, made available continuously, in the appropriate medium listed in Appendix III.
8. The notice provided for in paragraph 7 shall include:
a) a description of the goods or services, or categories thereof, for which the list may be used;
b) the conditions for participation to be satisfied by suppliers for inclusion on the list and the methods that the procuring entity will use to verify that a supplier satisfies the conditions;
c) the name and address of the procuring entity and other information necessary to contact the entity and obtain all relevant documents relat- ing to the list;
d) the period of validity of the list and the means for its renewal or termination, or where the period of validity is not provided, an indica- tion of the method by which notice will be given of the termination of use of the list; and
e) an indication that the list may be used for procurement covered by this Agreement.
9. Notwithstanding paragraph 7, where a multi-use list will be valid for three years or less, a procuring entity may publish the notice refer- red to in paragraph 7 only once, at the beginning of the period of valid- ity of the list, provided that the notice:
a) states the period of validity and that further notices will not be pub- lished; and
b) is published by electronic means and is made available continu- ously during the period of its validity.
10. A procuring entity shall allow suppliers to apply at any time for inclusion on a multi-use list and shall include on the list all qualified suppliers within a reasonably short time.
11. Where a supplier that is not included on a multi-use list submits a request for participation in a procurement based on a multi-use list and all required documents, within the time-period provided for in Article XI:2, a procuring entity shall examine the request. The procuring entity shall not exclude the supplier from consideration in respect of the pro- curement on the grounds that the entity has insufficient time to examine the request, unless, in exceptional cases, due to the complexity of the procurement, the entity is not able to complete the examination of the request within the time-period allowed for the submission of tenders.
Annex 2 and Annex 3 Entities
12. A procuring entity covered under Annex 2 or 3 may use a notice inviting suppliers to apply for inclusion on a multi-use list as a notice of intended procurement, provided that:
a) the notice is published in accordance with paragraph 7 and in- cludes the information required under paragraph 8, as much of the infor- mation required under Article VII:2 as is available and a statement that it constitutes a notice of intended procurement or that only the suppliers on the multi-use list will receive further notices of procurement covered by the multi-use list; and
13. A procuring entity covered under Annex 2 or 3 may allow a sup- plier that has applied for inclusion on a multi-use list in accordance with paragraph 10 to tender in a given procurement, where there is sufficient time for the procuring entity to examine whether the supplier satisfies the conditions for participation.
Information on Procuring Entity Decisions
14. A procuring entity shall promptly inform any supplier that sub- mits a request for participation in a procurement or application for inclu- sion on a multi-use list of the procuring entity’s decision with respect to the request or application.
15. Where a procuring entity rejects a supplier’s request for partici- pation in a procurement or application for inclusion on a multi-use list, ceases to recognize a supplier as qualified, or removes a supplier from a multi-use list, the entity shall promptly inform the supplier and, on request of the supplier, promptly provide the supplier with a written explanation of the reasons for its decision.
Article X
Technical Specifications and Tender Documentation Technical Specifications
1. A procuring entity shall not prepare, adopt or apply any technical specification or prescribe any conformity assessment procedure with the purpose or the effect of creating unnecessary obstacles to international trade.
2. In prescribing the technical specifications for the goods or services being procured, a procuring entity shall, where appropriate:
a) set out the technical specification in terms of performance and functional requirements, rather than design or descriptive characteristics; and
b) base the technical specification on international standards, where such exist; otherwise, on national technical regulations, recognized na- tional standards or building codes.
3. Where design or descriptive characteristics are used in the techni- cal specifications, a procuring entity should indicate, where appropriate, that it will consider tenders of equivalent goods or services that demon- strably fulfil the requirements of the procurement by including words such as “or equivalent” in the tender documentation.
4. A procuring entity shall not prescribe technical specifications that require or refer to a particular trademark or trade name, patent, copy- right, design, type, specific origin, producer or supplier, unless there is no other sufficiently precise or intelligible way of describing the procure- ment requirements and provided that, in such cases, the entity includes words such as “or equivalent” in the tender documentation.
5. A procuring entity shall not seek or accept, in a manner that would have the effect of precluding competition, advice that may be used in the preparation or adoption of any technical specification for a specific pro- curement from a person that may have a commercial interest in the pro- curement.
6. For greater certainty, a Party, including its procuring entities, may, in accordance with this Article, prepare, adopt or apply technical speci- fications to promote the conservation of natural resources or protect the environment.
Tender Documentation
7. A procuring entity shall make available to suppliers tender docu- mentation that includes all information necessary to permit suppliers to prepare and submit responsive tenders. Unless already provided in the notice of intended procurement, such documentation shall include a complete description of:
a) the procurement, including the nature and the quantity of the goods or services to be procured or, where the quantity is not known, the esti- mated quantity and any requirements to be fulfilled, including any tech- nical specifications, conformity assessment certification, plans, drawings or instructional materials;
b) any conditions for participation of suppliers, including a list of information and documents that suppliers are required to submit in con- nection with the conditions for participation;
c) all evaluation criteria the entity will apply in the awarding of the contract, and, except where price is the sole criterion, the relative impor- tance of such criteria;
d) where the procuring entity will conduct the procurement by elec- tronic means, any authentication and encryption requirements or other requirements related to the submission of information by electronic means;
e) where the procuring entity will hold an electronic auction, the rules, including identification of the elements of the tender related to the evaluation criteria, on which the auction will be conducted;
f) where there will be a public opening of tenders, the date, time and place for the opening and, where appropriate, the persons authorized to be present;
g) any other terms or conditions, including terms of payment and any limitation on the means by which tenders may be submitted, such as whether on paper or by electronic means; and
h) any dates for the delivery of goods or the supply of services.
8. In establishing any date for the delivery of goods or the supply of services being procured, a procuring entity shall take into account such factors as the complexity of the procurement, the extent of subcontract- ing anticipated and the realistic time required for production, de-stocking and transport of goods from the point of supply or for supply of services.
9. The evaluation criteria set out in the notice of intended procure- ment or tender documentation may include, among others, price and other cost factors, quality, technical merit, environmental characteristics and terms of delivery.
10. A procuring entity shall promptly:
a) make available tender documentation to ensure that interested sup- pliers have sufficient time to submit responsive tenders;
b) provide, on request, the tender documentation to any interested supplier; and
c) reply to any reasonable request for relevant information by any interested or participating supplier, provided that such information does not give that supplier an advantage over other suppliers.
Modifications
11. Where, prior to the award of a contract, a procuring entity modi- fies the criteria or requirements set out in the notice of intended procure- ment or tender documentation provided to participating suppliers, or amends or reissues a notice or tender documentation, it shall transmit in writing all such modifications or amended or re-issued notice or tender documentation:
a) to all suppliers that are participating at the time of the modifica- tion, amendment or re-issuance, where such suppliers are known to the entity, and in all other cases, in the same manner as the original infor- mation was made available; and
b) in adequate time to allow such suppliers to modify and re-submit amended tenders, as appropriate.
Article XI
Time-Periods
1. A procuring entity shall, consistent with its own reasonable needs, provide sufficient time for suppliers to prepare and submit requests for participation and responsive tenders, taking into account such factors as:
a) the nature and complexity of the procurement;
b) the extent of subcontracting anticipated; and
c) the time necessary for transmitting tenders by non-electronic means from foreign as well as domestic points where electronic means are not used.
Such time-periods, including any extension of the time-periods, shall be the same for all interested or participating suppliers.
Deadlines
2. A procuring entity that uses selective tendering shall establish that the final date for the submission of requests for participation shall not, in principle, be less than 25 days from the date of publication of the notice of intended procurement. Where a state of urgency duly substan- tiated by the procuring entity renders this time-period impracticable, the time-period may be reduced to not less than 10 days.
3. Except as provided for in paragraphs 4, 5, 7 and 8 a procuring entity shall establish that the final date for the submission of tenders shall not be less than 40 days from the date on which:
a) in the case of open tendering, the notice of intended procurement is published; or
b) in the case of selective tendering, the entity notifies suppliers that they will be invited to submit tenders, whether or not it uses a multi-use list.
4. A procuring entity may reduce the time-period for tendering estab- lished in accordance with paragraph 3 to not less than 10 days where:
a) the procuring entity has published a notice of planned procurement as described in Article VII:4 at least 40 days and not more than 12 months in advance of the publication of the notice of intended procure- ment, and the notice of planned procurement contains:
(i) a description of the procurement;
(ii) the approximate final dates for the submission of tenders or requests for participation;
(iii) a statement that interested suppliers should express their inter- est in the procurement to the procuring entity;
(iv) the address from which documents relating to the procurement may be obtained; and
(v) as much of the information that is required for the notice of intended procurement under Article VII:2, as is available;
b) the procuring entity, for recurring contracts, indicates in an initial notice of intended procurement that subsequent notices will provide time-periods for tendering based on this paragraph; or
c) a state of urgency duly substantiated by the procuring entity ren- ders the time-period for tendering established in accordance with para- graph 3 impracticable.
5. A procuring entity may reduce the time-period for tendering estab- lished in accordance with paragraph 3 by five days for each one of the following circumstances:
a) the notice of intended procurement is published by electronic means;
b) all the tender documentation is made available by electronic means from the date of the publication of the notice of intended procurement; and
c) the entity accepts tenders by electronic means.
6. The use of paragraph 5, in conjunction with paragraph 4, shall in no case result in the reduction of the time-period for tendering estab- lished in accordance with paragraph 3 to less than 10 days from the date on which the notice of intended procurement is published.
7. Notwithstanding any other provision in this Article, where a pro- curing entity purchases commercial goods or services, or any combina- tion thereof, it may reduce the time-period for tendering established in accordance with paragraph 3 to not less than 13 days, provided that it publishes by electronic means, at the same time, both the notice of intended procurement and the tender documentation. In addition, where the entity accepts tenders for commercial goods or services by electronic means, it may reduce the time-period established in accordance with paragraph 3 to not less than 10 days.
8. Where a procuring entity covered under Annex 2 or 3 has selected all or a limited number of qualified suppliers, the time-period for ten- dering may be fixed by mutual agreement between the procuring entity and the selected suppliers. In the absence of agreement, the period shall not be less than 10 days.
Negotiation
1. A Party may provide for its procuring entities to conduct negotia- tions:
a) where the entity has indicated its intent to conduct negotiations in the notice of intended procurement required under Article VII:2; or
b) where it appears from the evaluation that no tender is obviously the most advantageous in terms of the specific evaluation criteria set out in the notice of intended procurement or tender documentation.
2. A procuring entity shall:
a) ensure that any elimination of suppliers participating in negotia- tions is carried out in accordance with the evaluation criteria set out in the notice of intended procurement or tender documentation; and
b) where negotiations are concluded, provide a common deadline for the remaining participating suppliers to submit any new or revised ten- ders.
Article XIII
Limited Tendering
1. Provided that it does not use this provision for the purpose of avoiding competition among suppliers or in a manner that discriminates against suppliers of any other Party or protects domestic suppliers, a pro- curing entity may use limited tendering and may choose not to apply Articles VII through IX, X (paragraphs 7 through 11), XI, XII, XIV and XV only under any of the following circumstances:
a) where:
(i) no tenders were submitted or no suppliers requested participa- tion;
(ii) no tenders that conform to the essential requirements of the ten- der documentation were submitted;
(iii) no suppliers satisfied the conditions for participation; or
(iv) the tenders submitted have been collusive,
provided that the requirements of the tender documentation are not substantially modified;
b) where the goods or services can be supplied only by a particular supplier and no reasonable alternative or substitute goods or services exist for any of the following reasons:
(i) the requirement is for a work of art;
(ii) the protection of patents, copyrights or other exclusive rights; or
(iii) due to an absence of competition for technical reasons;
c) for additional deliveries by the original supplier of goods or ser- vices that were not included in the initial procurement where a change of supplier for such additional goods or services:
(i) cannot be made for economic or technical reasons such as requirements of interchangeability or interoperability with ex- isting equipment, software, services or installations procured under the initial procurement; and
(ii) would cause significant inconvenience or substantial duplica- tion of costs for the procuring entity;
d) insofar as is strictly necessary where, for reasons of extreme urgency brought about by events unforeseeable by the procuring entity, the goods or services could not be obtained in time using open tender- ing or selective tendering;
e) for goods purchased on a commodity market;
f) where a procuring entity procures a prototype or a first good or service that is developed at its request in the course of, and for, a par- ticular contract for research, experiment, study or original development. Original development of a first good or service may include limited pro- duction or supply in order to incorporate the results of field testing and to demonstrate that the good or service is suitable for production or sup- ply in quantity to acceptable quality standards, but does not include quantity production or supply to establish commercial viability or to recover research and development costs;
g) for purchases made under exceptionally advantageous conditions that only arise in the very short term in the case of unusual disposals such as those arising from liquidation, receivership or bankruptcy, but not for routine purchases from regular suppliers; or
h) where a contract is awarded to a winner of a design contest provided that:
(i) the contest has been organized in a manner that is consistent with the principles of this Agreement, in particular relating to the publication of a notice of intended procurement; and
(ii) the participants are judged by an independent jury with a view to a design contract being awarded to a winner.
2. A procuring entity shall prepare a report in writing on each con- tract awarded under paragraph 1. The report shall include the name of the procuring entity, the value and kind of goods or services procured and a statement indicating the circumstances and conditions described in paragraph 1 that justified the use of limited tendering.
Electronic Auctions
Where a procuring entity intends to conduct a covered procurement using an electronic auction, the entity shall provide each participant, before commencing the electronic auction, with:
a) the automatic evaluation method, including the mathematical for- mula, that is based on the evaluation criteria set out in the tender docu- mentation and that will be used in the automatic ranking or re-ranking during the auction;
b) the results of any initial evaluation of the elements of its tender where the contract is to be awarded on the basis of the most advanta- geous tender; and
c) any other relevant information relating to the conduct of the auc- tion.
Article XV
Treatment of Tenders and Awarding of Contracts Treatment of Tenders
1. A procuring entity shall receive, open and treat all tenders under procedures that guarantee the fairness and impartiality of the procure- ment process, and the confidentiality of tenders.
2. A procuring entity shall not penalize any supplier whose tender is received after the time specified for receiving tenders if the delay is due solely to mishandling on the part of the procuring entity.
3. Where a procuring entity provides a supplier with an opportunity to correct unintentional errors of form between the opening of tenders and the awarding of the contract, the procuring entity shall provide the same opportunity to all participating suppliers.
Awarding of Contracts
4. To be considered for an award, a tender shall be submitted in writ- ing and shall, at the time of opening, comply with the essential require- ments set out in the notices and tender documentation and be from a supplier that satisfies the conditions for participation.
5. Unless a procuring entity determines that it is not in the public interest to award a contract, the entity shall award the contract to the supplier that the entity has determined to be capable of fulfilling the
a) the most advantageous tender; or
b) where price is the sole criterion, the lowest price.
6. Where a procuring entity receives a tender with a price that is abnormally lower than the prices in other tenders submitted, it may verify with the supplier that it satisfies the conditions for participation and is capable of fulfilling the terms of the contract.
7. A procuring entity shall not use options, cancel a procurement or modify awarded contracts in a manner that circumvents the obligations under this Agreement.
Article XVI
Transparency of Procurement Information Information Provided to Suppliers
1. A procuring entity shall promptly inform participating suppliers of the entity’s contract award decisions and, on the request of a supplier, shall do so in writing. Subject to paragraphs 2 and 3 of Article XVII, a procuring entity shall, on request, provide an unsuccessful supplier with an explanation of the reasons why the entity did not select its tender and the relative advantages of the successful supplier’s tender.
Publication of Award Information
2. Not later than 72 days after the award of each contract covered by this Agreement, a procuring entity shall publish a notice in the appropri- ate paper or electronic medium listed in Appendix III. Where the entity publishes the notice only in an electronic medium, the information shall remain readily accessible for a reasonable period of time. The notice shall include at least the following information:
a) a description of the goods or services procured;
b) the name and address of the procuring entity;
c) the name and address of the successful supplier;
d) the value of the successful tender or the highest and lowest offers taken into account in the award of the contract;
e) the date of award; and
f) the type of procurement method used, and in cases where limited tendering was used in accordance with Article XIII, a description of the circumstances justifying the use of limited tendering.
Maintenance of Documentation, Reports and Electronic Traceability
3. Each procuring entity shall, for a period of at least three years from the date it awards a contract, maintain:
a) the documentation and reports of tendering procedures and con- tract awards relating to covered procurement, including the reports required under Article XIII; and
b) data that ensure the appropriate traceability of the conduct of cov- ered procurement by electronic means.
Collection and Reporting of Statistics
4. Each Party shall collect and report to the Committee statistics on its contracts covered by this Agreement. Each report shall cover one year and be submitted within two years of the end of the reporting period, and shall contain:
a) for Annex 1 procuring entities:
(i) the number and total value, for all such entities, of all contracts covered by this Agreement;
(ii) the number and total value of all contracts covered by this Agreement awarded by each such entity, broken down by cat- egories of goods and services according to an internationally recognized uniform classification system; and
(iii) the number and total value of all contracts covered by this Agreement awarded by each such entity under limited tender- ing;
b) for Annex 2 and 3 procuring entities, the number and total value of contracts covered by this Agreement awarded by all such entities, bro- ken down by Xxxxx; and
c) estimates for the data required under subparagraphs (a) and (b), with an explanation of the methodology used to develop the estimates, where it is not feasible to provide the data.
5. Where a Party publishes its statistics on an official website, in a manner that is consistent with the requirements of paragraph 4, the Party may substitute a notification to the Committee of the website address for the submission of the data under paragraph 4, with any instructions nec- essary to access and use such statistics.
6. Where a Party requires notices concerning awarded contracts, pur- suant to paragraph 2, to be published electronically and where such notices are accessible to the public through a single database in a form permitting analysis of the covered contracts, the Party may substitute a notification to the Committee of the website address for the submission of the data under paragraph 4, with any instructions necessary to access and use such data.
Disclosure of Information Provision of Information to Parties
1. On request of any other Party, a Party shall provide promptly any information necessary to determine whether a procurement was con- ducted fairly, impartially and in accordance with this Agreement, includ- ing information on the characteristics and relative advantages of the suc- cessful tender. In cases where release of the information would prejudice competition in future tenders, the Party that receives the information shall not disclose it to any supplier, except after consulting with, and obtaining the agreement of, the Party that provided the information.
Non-Disclosure of Information
2. Notwithstanding any other provision of this Agreement, a Party, including its procuring entities, shall not provide to any particular sup- plier information that might prejudice fair competition between suppli- ers.
3. Nothing in this Agreement shall be construed to require a Party, including its procuring entities, authorities and review bodies, to disclose confidential information where disclosure:
a) would impede law enforcement;
b) might prejudice fair competition between suppliers;
c) would prejudice the legitimate commercial interests of particular persons, including the protection of intellectual property; or
d) would otherwise be contrary to the public interest.
Article XVIII
Domestic Review Procedures
1. Each Party shall provide a timely, effective, transparent and non- discriminatory administrative or judicial review procedure through which a supplier may challenge:
a) a breach of the Agreement; or
b) where the supplier does not have a right to challenge directly a breach of the Agreement under the domestic law of a Party, a failure to comply with a Party’s measures implementing this Agreement,
arising in the context of a covered procurement, in which the supplier has, or has had, an interest. The procedural rules for all challenges shall be in writing and made generally available.
2. In the event of a complaint by a supplier, arising in the context of covered procurement in which the supplier has, or has had, an interest, that there has been a breach or a failure as referred to in paragraph 1, the Party of the procuring entity conducting the procurement shall encourage the entity and the supplier to seek resolution of the complaint through consultations. The entity shall accord impartial and timely con- sideration to any such complaint in a manner that is not prejudicial to the supplier’s participation in ongoing or future procurement or its right to seek corrective measures under the administrative or judicial review procedure.
3. Each supplier shall be allowed a sufficient period of time to pre- pare and submit a challenge, which in no case shall be less than 10 days from the time when the basis of the challenge became known or reason- ably should have become known to the supplier.
4. Each Party shall establish or designate at least one impartial ad- ministrative or judicial authority that is independent of its procuring entities to receive and review a challenge by a supplier arising in the context of a covered procurement.
5. Where a body other than an authority referred to in paragraph 4 initially reviews a challenge, the Party shall ensure that the supplier may appeal the initial decision to an impartial administrative or judicial authority that is independent of the procuring entity whose procurement is the subject of the challenge.
6. Each Party shall ensure that a review body that is not a court shall have its decision subject to judicial review or have procedures that pro- vide that:
a) the procuring entity shall respond in writing to the challenge and disclose all relevant documents to the review body;
b) the participants to the proceedings (hereinafter referred to as “par- ticipants”) shall have the right to be heard prior to a decision of the review body being made on the challenge;
c) the participants shall have the right to be represented and accom- panied;
d) the participants shall have access to all proceedings;
e) the participants shall have the right to request that the proceedings take place in public and that witnesses may be presented; and
f) the review body shall make its decisions or recommendations in a timely fashion, in writing, and shall include an explanation of the basis for each decision or recommendation.
7. Each Party shall adopt or maintain procedures that provide for:
a) rapid interim measures to preserve the supplier’s opportunity to participate in the procurement. Such interim measures may result in sus-
b) where a review body has determined that there has been a breach or a failure as referred to in paragraph 1, corrective action or compen- sation for the loss or damages suffered, which may be limited to either the costs for the preparation of the tender or the costs relating to the challenge, or both.
Article XIX
Modifications and Rectifications to Coverage Notification of Proposed Modification
1. A Party shall notify the Committee of any proposed rectification, transfer of an entity from one annex to another, withdrawal of an entity or other modification of its annexes to Appendix I (any of which is here- inafter referred to as “modification”). The Party proposing the modifica- tion (hereinafter referred to as “modifying Party”) shall include in the notification:
a) for any proposed withdrawal of an entity from its annexes to Appendix I in exercise of its rights on the grounds that government con- trol or influence over the entity’s covered procurement has been effec- tively eliminated, evidence of such elimination; or
b) for any other proposed modification, information as to the likely consequences of the change for the mutually agreed coverage provided for in this Agreement.
Objection to Notification
2. Any Party whose rights under this Agreement may be affected by a proposed modification notified under paragraph 1 may notify the Com- mittee of any objection to the proposed modification. Such objections shall be made within 45 days from the date of the circulation to the Par- ties of the notification, and shall set out reasons for the objection.
Consultations
3. The modifying Party and any Party making an objection (herein- after referred to as “objecting Party”) shall make every attempt to resolve the objection through consultations. In such consultations, the modifying and objecting Parties shall consider the proposed modifica- tion:
a) in the case of a notification under paragraph 1(a), in accordance with any indicative criteria adopted pursuant to paragraph 8(b), indicat- ing the effective elimination of government control or influence over an entity’s covered procurement; and
b) in the case of a notification under paragraph 1(b), in accordance with any criteria adopted pursuant to paragraph 8(c), relating to the level of compensatory adjustments to be offered for modifications, with a view to maintaining a balance of rights and obligations and a compara- ble level of mutually agreed coverage provided in this Agreement.
Revised Modification
4. Where the modifying Party and any objecting Party resolve the objection through consultations, and the modifying Party revises its pro- posed modification as a result of those consultations, the modifying Party shall notify the Committee in accordance with paragraph 1, and any such revised modification shall only be effective after fulfilling the requirements of this Article.
Implementation of Modifications
5. A proposed modification shall become effective only where:
a) no Party submits to the Committee a written objection to the pro- posed modification within 45 days from the date of circulation of the notification of the proposed modification under paragraph 1;
b) all objecting Parties have notified the Committee that they with- draw their objections to the proposed modification; or
c) 150 days from the date of circulation of the notification of the pro- posed modification under paragraph 1 have elapsed, and the modifying Party has informed the Committee in writing of its intention to imple- ment the modification.
Withdrawal of Substantially Equivalent Coverage
6. Where a modification becomes effective pursuant to paragraph 5(c), any objecting Party may withdraw substantially equivalent cover- age. Notwithstanding Article IV:1(b), a withdrawal pursuant to this para- graph may be implemented solely with respect to the modifying Party. Any objecting Party shall inform the Committee in writing of any such withdrawal at least 30 days before the withdrawal becomes effective. A withdrawal pursuant to this paragraph shall be consistent with any cri- teria relating to the level of compensatory adjustment adopted by the Committee pursuant to paragraph 8(c).
Arbitration Procedures to Facilitate Resolution of Objections
7. Where the Committee has adopted arbitration procedures to facili- tate the resolution of objections pursuant to paragraph 8, a modifying or any objecting Party may invoke the arbitration procedures within 120 days of circulation of the notification of the proposed modification:
a) Where no Party has invoked the arbitration procedures within the time-period:
(i) notwithstanding paragraph 5(c), the proposed modification shall become effective where 130 days from the date of circulation of the notification of the proposed modification under paragraph 1 have elapsed, and the modifying Party has informed the Com- mittee in writing of its intention to implement the modification; and
(ii) no objecting Party may withdraw coverage pursuant to para- graph 6.
b) Where a modifying Party or objecting Party has invoked the arbi- tration procedures:
(i) notwithstanding paragraph 5(c), the proposed modification shall not become effective before the completion of the arbitration procedures;
(ii) any objecting Party that intends to enforce a right to compen- sation, or to withdraw substantially equivalent coverage pursu- ant to paragraph 6, shall participate in the arbitration proceed- ings;
(iii) a modifying Party should comply with the results of the arbi- tration procedures in making any modification effective pursu- ant to paragraph 5(c); and
(iv) where a modifying Party does not comply with the results of the arbitration procedures in making any modification effective pur- suant to paragraph 5(c), any objecting Party may withdraw sub- stantially equivalent coverage pursuant to paragraph 6, provided that any such withdrawal is consistent with the result of the arbitration procedures.
Committee Responsibilities
8. The Committee shall adopt:
a) arbitration procedures to facilitate resolution of objections under paragraph 2;
b) indicative criteria that demonstrate the effective elimination of government control or influence over an entity’s covered procurement; and
c) criteria for determining the level of compensatory adjustment to be offered for modifications made pursuant to paragraph 1(b) and of sub- stantially equivalent coverage under paragraph 6.
Consultations and Dispute Settlement
1. Each Party shall accord sympathetic consideration to and shall afford adequate opportunity for consultation regarding any representa- tion made by another Party with respect to any matter affecting the operation of this Agreement.
2. Where any Party considers that any benefit accruing to it, directly or indirectly, under this Agreement is being nullified or impaired, or that the attainment of any objective of this Agreement is being impeded as the result of:
a) the failure of another Party or Parties to carry out its obligations under this Agreement; or
b) the application by another Party or Parties of any measure, whether or not it conflicts with the provisions of this Agreement,
it may, with a view to reaching a mutually satisfactory solution to the matter, have recourse to the provisions of the Understanding on Rules and Procedures Governing the Settlement of Disputes (hereinafter refer- red to as “the Dispute Settlement Understanding”).
3. The Dispute Settlement Understanding shall apply to consultations and the settlement of disputes under this Agreement, with the exception that, notwithstanding paragraph 3 of Article 22 of the Dispute Settlement Understanding, any dispute arising under any Agreement listed in Ap- pendix 1 to the Dispute Settlement Understanding other than this Agree- ment shall not result in the suspension of concessions or other obliga- tions under this Agreement, and any dispute arising under this Agreement shall not result in the suspension of concessions or other obligations under any other Agreement listed in Appendix 1 of the Dispute Settle- ment Understanding.
Article XXI
Institutions Committee on Government Procurement
1. There shall be a Committee on Government Procurement com- posed of representatives from each of the Parties. This Committee shall elect its own Chairman and shall meet as necessary, but not less than once a year, for the purpose of affording Parties the opportunity to con- sult 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.
3. The Committee shall annually:
a) review the implementation and operation of this Agreement; and
b) inform the General Council of its activities, pursuant to Article IV:8 of the Marrakesh Agreement Establishing the World Trade Organi- zation (hereinafter referred to as “WTO Agreement”), and of develop- ments relating to the implementation and operation of this Agreement.
Observers
4. Any WTO Member that is not a Party to this Agreement shall be entitled to participate in the Committee as an observer by submitting a written notice to the Committee. Any WTO observer may submit a writ- ten request to the Committee to participate in the Committee as an observer, and may be accorded observer status by the Committee.
Article XXII
Final Provisions Acceptance and Entry into Force
1. This Agreement shall enter into force on 1 January 1996 for those governments1) whose agreed coverage is contained in the Annexes 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 Agree- ment subject to ratification and have subsequently ratified the Agreement before 1 January 1996.
Accession
2. Any Member of the WTO may accede to this Agreement on terms to be agreed between that Member and the Parties, with such terms stated in a decision of the Committee. Accession shall take place by deposit with the Director-General of the WTO of an instrument of acces- sion that states the terms so agreed. This Agreement shall enter into force for a Member acceding to it on the 30th day following the deposit of its instrument of accession.
1) For the purpose of this Agreement, the term “government” is deemed to include the competent authorities of the European Union.
Reservations
3. No Party may enter a reservation in respect of any provision of this Agreement.
Domestic Legislation
4. Each Party 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 ap- plied by its procuring entities, with the provisions of this Agreement.
5. Each Party shall inform the Committee of any changes to its laws and regulations relevant to this Agreement and in the administration of such laws and regulations.
Future Negotiations and Future Work Programmes
6. Each Party shall seek to avoid introducing or continuing discrimi- natory measures that distort open procurement.
7. Not later than the end of three years from the date of entry into force of the Protocol Amending the Agreement on Government Procure- ment, adopted on 30 March 2012, and periodically thereafter, the Parties shall undertake further negotiations, with a view to improving this Agreement, progressively reducing and eliminating discriminatory meas- ures, and achieving the greatest possible extension of its coverage among all Parties on the basis of mutual reciprocity, taking into consi- deration the needs of developing countries.
8. a) The Committee shall undertake further work to facilitate the implementation of this Agreement and the negotiations provided for in paragraph 7, through the adoption of work programmes for the follow- ing items:
(i) the treatment of small and medium-sized enterprises;
(ii) the collection and dissemination of statistical data;
(iii) the treatment of sustainable procurement;
(iv) exclusions and restrictions in Parties’ Annexes; and
(v) safety standards in international procurement.
b) The Committee:
(i) may adopt a decision that contains a list of work programmes on additional items, which may be reviewed and updated peri- odically; and
(ii) shall adopt a decision setting out the work to be undertaken on each particular work programme under subparagraph (a) and any work programme adopted under subparagraph (b)(i).
9. Following the conclusion of the work programme to harmonize rules of origin for goods being undertaken under the Agreement on Rules of Origin in Annex 1A to the WTO Agreement and negotiations regarding trade in services, the Parties shall take the results of that work programme and those negotiations into account in amending Article IV:5, as appropriate.
10. Not later than the end of the fifth year from the date of entry into force of the Protocol Amending the Agreement on Government Procure- ment, the Committee shall examine the applicability of Article XX:2(b).
Amendments
11. The Parties may amend this Agreement. A decision to adopt an amendment and to submit it for acceptance by the Parties shall be taken by consensus. An amendment shall enter into force:
a) except as provided for in subparagraph (b), in respect of those Par- ties that accept it, upon acceptance by two thirds of the Parties and there- after for each other Party upon acceptance by it;
b) for all Parties upon acceptance by two thirds of the Parties if it is an amendment that the Committee, by consensus, has determined to be of a nature that would not alter the rights and obligations of the Parties.
Withdrawal
12. Any Party may withdraw from this Agreement. The withdrawal shall take effect upon the expiration of 60 days from the date the Director-General of the WTO receives written notice of the withdrawal. Any Party may, upon such notification, request an immediate meeting of the Committee.
13. Where a Party to this Agreement ceases to be a Member of the WTO, it shall cease to be a Party to this Agreement with effect on the date on which it ceases to be a Member of the WTO.
Non-application of this Agreement between Particular Parties
14. This Agreement shall not apply as between any two Parties where either Party, at the time either Party accepts or accedes to this Agree- ment, does not consent to such application.
Appendices
15. The Appendices to this Agreement constitute an integral part thereof.
16. This Agreement shall be serviced by the WTO Secretariat.
Deposit
17. 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 Article XIX and of each amendment pursuant to paragraph 11, and a notification of each accession thereto pursuant to paragraph 2 and of each withdrawal pursuant to paragraphs 12 or 13.
Registration
18. This Agreement shall be registered in accordance with the provi- sions of Article 102 of the Charter of the United Nations.
C. VERTALING
Zie Trb. 1995, 130.
Voor een correctie in de vertaling, zie Trb. 1996, 325.
D. PARLEMENT
Zie Trb. 1995, 130.
Binding voor het Europese deel van Nederland, als lidstaat van de Europese Unie, wordt via de Europese Unie tot stand gebracht. Het Pro- tocol van 30 maart 2012 behoeft voor de overige delen van het Konink- rijk ingevolge artikel 91 van de Grondwet de goedkeuring van de Staten- Generaal, alvorens het Koninkrijk aan het Protocol kan worden gebonden.
E. PARTIJGEGEVENS
Overeenkomst
Zie rubriek E van Trb. 1995, 130 en rubriek F van Trb. 1996, 325.
Partij | Onder- tekening | Ratificatie | Type* | In werking | Opzeg- ging | Buiten werking |
Armenië | 16-08-11 | T | 15-09-11 |
Partij | Onder- tekening | Ratificatie | Type* | In werking | Opzeg- ging | Buiten werking |
Canada | 15-04-94 | 22-12-95 | R | 01-01-96 | ||
EU (Europese Unie) | 15-04-94 | 30-12-94 | R | 01-01-96 | ||
Hongkong, Speciale Administratieve Regio | 20-05-97 | T | 19-06-97 | |||
IJsland | 29-03-01 | T | 28-04-01 | |||
Israël | 15-04-94 | 31-12-95 | R | 01-01-96 | ||
Japan | 15-04-94 | 05-12-95 | X | 00-00-00 | ||
Xxxxxxxxxxxxx | 19-08-97 | T | 18-09-97 | |||
Nederlanden, het Koninkrijk der – Nederland: – in Europa – Xxxxxxx – Xxxx Xxxxxxxxx – Xxxx – Xxxxx – Xxxxxxx – Xxxx Xxxxxxx | 00-00-00 | X | 00-00-00 | |||
Xxxxxxxxx | 15-04-94 | 07-12-94 | R | 01-01-96 | ||
Singapore | 20-09-97 | T | 20-10-97 | |||
Taiwan | 00-00-00 | X | 00-00-00 | |||
Xxxxxxxxx Xxxxxx van Amerika | 15-04-94 | 01-12-95 | R | 01-01-96 | ||
Zuid-Korea | 15-04-94 | 22-12-95 | R | 01-01-96 | ||
Zwitserland | 15-04-94 | 19-12-95 | R | 01-01-96 | ||
* O=Ondertekening zonder voorbehoud of vereiste van ratificatie, R= Bekrachtiging, aanvaarding, goedkeuring of kennisgeving, T=Toetreding, VG=Voortgezette gebonden- heid, NB=Niet bekend | ||||||
Verklaringen, voorbehouden en bezwaren
Canada, 22 december 1995
In endorsing this Agreement vis-à-vis the United States for Annex 1 (Federal departments and agencies), Canada’s commitments are made on
the basis of our understanding of (1) the value of the U.S. offer at the time of signing of the Agreement in Marrakesh and (2) the value of “small and minority business set-asides” discussed with the Unites States in reference to the exception taken for these programs in their offer. Canada would further note that its commitments are put forward on the understanding that the value of U.S. contracts, otherwise subject to WTO-AGP, to which preferences for U.S. small and minority busi- nesses are applied, is consistent with statistics recently tabled by the United States in accordance with the requirements of Chapter 10 of the NAFTA. These statistics indicate that the total value of small and minor- ity business set-asides for U.S. departments and agencies is US$3.0 bil- lion. With appropriate adjustments for the higher treshold values of the WTO-AGP, that value would be approximately US$2.4 billion.
Zuid-Korea, 22 december 1995
In accordance with paragraph 3(a) of Article XXIV of the Agreement the Republic of Korea will delay application of the provisions of the said Agreement, except Articles XXI and XXII, to a date not later than 1 January 1997.
G. INWERKINGTREDING
Zie Trb. 1995, 130 en Trb. 1996, 325.
In Trb. 1995, 130 staat ten onrechte vermeld dat de Overeenkomst geldt voor de Nederlandse Antillen. De Overeenkomst geldt niet voor de Nederlandse Antillen (het Caribische deel van Nederland, Curaçao en Sint Maarten). Het Europese deel van Nederland is gebonden als lidstaat van de Europese Unie.
De bepalingen van het Protocol van 30 maart 2012 zullen ingevolge de derde alinea van het Protocol in werking treden voor die partijen bij de Overeenkomst van 1994 die hun respectieve akten van aanvaarding van dit Protocol hebben nedergelegd, op de dertigste dag volgend op de nederlegging hiervan door twee derde van de partijen bij de Overeen- komst van 1994.
J. VERWIJZINGEN
Titel : Handvest van de Verenigde Naties;
San Francisco, 26 juni 0000
Xxxxx : Trb. 1979, 37 (Engels en Frans, herzien)
Trb. 1987, 113 (vertaling, herzien)
Laatste Trb. : Trb. 2012, 200
Titel : Verdrag betreffende de Europese Unie;
Maastricht, 7 februari 0000
Xxxxx : Trb. 2008, 53 (Nederlands, geconsolideerd) Laatste Trb. : Trb. 2012, 182
Titel : Overeenkomst tot oprichting van de Wereldhandels- organisatie;
Marrakesh, 15 april 0000
Xxxxx : Trb. 1994, 235 (Engels)
Trb. 1995, 130 (vertaling)
Laatste Trb. : Trb. 1996, 325
Titel : Verdrag van de Verenigde Naties tegen corruptie; New York, 31 oktober 0000
Xxxxx : Trb. 2004, 11 (Engels en Frans)
Trb. 2005, 244 (vertaling)
Laatste Trb. : Trb. 2011, 32
Uitgegeven de zevende mei 2013.
De Minister van Buitenlandse Zaken,
F.C.G.M. TIMMERMANS
trb-2013-76
ISSN 0920 - 2218
’s-Gravenhage 2013