RESTRICTEDWORLD TRADE
ORGANIZATIONWT/WGTGP/W/32
23 May 2002
(02-2856)
Working Group on Transparency
in Government Procurement
WORK  OF THE WORKING GROUP ON THE MATTERS RELATED TO
THE  ITEMS I-V OF THE LIST OF THE ISSUES RAISED AND POINTS MADE
Note by the Secretariat
1. This note has been prepared in response to a request made at the informal meeting that was
held on 12 March 2002 that the Secretariat prepare, for each of the two substantive meetings in 2002,
short background papers summarizing the work that has already taken place in the Working Group onthe matters related to the sub-items to be discussed, drawing on and listing the documentation of the
Group.
2. This note covers items I to V of the Informal Note by the Chairman, "List of the Issues Raised
and Points Made" (Job(99)/6782, dated 12 November 1999), namely definition and scope;
procurement methods; information on national legislation and procedures; information onprocurement opportunities, tendering and qualification procedures;  and time-periods.
3. The aim is to provide a more concise note than the Informal Note by the Chairman as well as
to take into account subsequent discussions in the Working Group and papers submitted.  Being a
summary, this note does not contain all the details of the points made and explanations given.  For this
information delegations should consult the Informal Note by the Chairman and the otherdocumentation of the Working Group.  As requested, a list of the documentation of the Working
Group can be found annexed.
4. On items I to V, this note first briefly sets out the information that was considered by the
Working Group on provisions in existing international instruments and on national procedures and
practices.  It will be recalled that at the outset of its work the Working Group sought information from
other intergovernmental organizations on relevant international instruments (in particular from
UNCITRAL and the World Bank)
1 and requested the Secretariat to provide a note synthesizing the
information available on transparency related provisions in existing international instruments on
government procurement procedures and on national practices.2  Under each of the items, this note
then summarizes the discussions in the Working Group, outlining the issues raised and main points
made.
                                                     
1 WT/WGTGP/W/1-2
2  WT/WGTGP/W/6WT/WGTGP/W/32
Page 2
I. DEFINITION AND SCOPE OF GOVERNMENT PROCUREMENT
(a) Information on provisions in existing international instruments and national procedures and
practices
5. The three instruments vary as to their scope and coverage. The Model Law is designed to be
applicable, in principle, to all types of  procurement of goods, construction and services .  What is meant
by "goods", "construction" and "services" is listed in the Model Law.  At the same time, it recognizes
that an enacting State may wish to exempt certa in types of procurement from the coverage of its
procurement legislation, for example defence- and security-related procurement.  The World Bank
Guidelines are applicable to the procurement of goods, works and related services, and to consultants'
services for a project that is financed in whole or in part by a loan from the IBRD or a credit from the
IDA.  The Agreement on Government Procurement (G PA) covers the procurement of goods, and of all
services and construction services that are specified in lists, found respectively in Annexes 4 and 5 of
Appendix I.  General Notes at the end of most Pa rties' schedules provide for a number of exceptions.
The Model Law defines "procurement" as the acquisition by any means of goods, construction and
services.  The GPA applies to procurement by any contractual means, including through such methodsas purchase or lease, rental or hire purchase, with or without an option to buy, including any
combination of products or services.
3
6. In order to take into account the existence of procurement legislation at different levels of
government , the Model Law presents two options as to the levels of government to be covered.  The first
option brings within the scope of the Model Law al l governmental departments, agencies, organs and
other units within the enacting State pertaining to th e central government as well as to provincial, local
or other governmental subdivisions of the enacting St ate.  A second option allows States to enact the
Model Law only with respect to the organs of th e national government. The GPA obligations under the
Agreement apply to procurement by the procuring entities that each Party has listed in its schedule in
Annexes 1 to 3 of Appendix I, relating respectively to central government entities, sub-centralgovernment entities and other entities such as public utilities.
7. The international instruments provide for the si ze of procurement contracts to be taken into
account in determining the requirements to which they  are subject.  The provisions of the GPA apply to
procurement in respect of procurement contracts a bove certain threshold values.  Each Party indicates
such thresholds applying to the procurement of goods and services under Annex 1, 2 and 3 entities. The
Model Law allows a procuring entity engaging in lo w-value procurement in which there is unlikely to
be interest on the part of foreign suppliers to forgo certain procedural requirements relating to
announcements at the international level.  Unde r the World Bank Guidelines, National Competitive
Bidding procedures may be preferred to Interna tional Competitive Bidding procedures when contract
values are small.
4
8. As regards national practice, the data available indicates that there is often no detailed
legislative or regulatory definition of government procurement.  In most cases, governmentprocurement is defined simply as the procurement of goods and services by central, provincial and
local governments, as well as by other public entities, which in certain cases include "utilities" - e.g.
suppliers of energy, water, transport and telecommunications services. Some countries treat the use of
public funds to finance purchases either fully or partially as a defining criterion. Some countries have
stated that procurement by any contractual means is covered, including purchases, leasing, rental orhire purchase, with or without an option to buy.  Other countries have stated that the term
"procurement" includes all stages of the process by which government agencies acquire from external
sources the goods and services they need to fulfil their mandates.
                                                     
3 WT/WGTGP/W/6, paras. 10-11
4 WT/WGTGP/W/6, para. 12WT/WGTGP/W/32
Page 3
(b) Discussions in the Working Group
9. Three main types of questions have arisen in the discussion on definition and scope:
- the definition and scope of government procurement for the purposes of the study
phase in the Working Group;
- the definition of government procurement that should be used for the purposes of any
commitments that may be negotiated; and
- the extent to which government procurement, as defined, should fall within the scope
of commitments.
(i) Definition and scope of government procurement for the purposes of the study phase
in the Working Group
10. With regard to this matter, there appears to have been a general acceptance that a broad
conception, without preconceived limitations, could be employed, it being understood that the focusof work is on the transparency of such government procurement.
5
(ii) Definition of government procurement for the purposes of rules that may be
negotiated
11. With regard to this matter, two main sets of issues have been discussed:
- the first is whether a definition should be employed based on the language in the
GATT and GATS for defining government procurement;
- the other is the scope of the contractual arrangements or transactions entered into by
government entities that should be considered to constitute government procurementfor these purposes.
12. With regard to the first of these points, the view has been expressed that the Group could
draw on the existing definitions of government procurement in GATT Article III:8 and GATS
Article XIII:2  as a basis for developing an appropriate definition in a transparency agreement.  In this
regard, the point has been made that, while it would be useful to draw on the existing language in
GATT and GATS, the mere reference to these two pr ovisions may not be sufficient for the purposes
of a future transparency agreement.
6 Other questions that have arisen have included whether the term
"governmental purposes" as contained in these provisions is by itself sufficiently clear.7
13. With regard to the question of the types of contractual arrangements or transactions
entered into by government entities that should be considered government procurement, it has been
suggested that acquisition by any contractual means, including, for example, through lease or rental,should be covered.
8  The main issue that has arisen in regard  to this matter is the extent to which
concessions and BOT (build-operate-transfer) contracts should be covered and, if covered, how they
should be defined.  Differing views have been expressed on these matters.  Some have taken the view
that BOT contracts and concessions should not be covered, expressing the view that concessions
generally have a different legal basis, purpose and philosophy from those underlying government
                                                     
5 JOB(99)/6782, para. 4
6 WT/WGTGP/M/10, para. 19;  WT/WGTGP/M/11, para. 17;  WT/WGTGP/W/26; JOB(99)/6782,
para. 18
7  WT/WGTGP/M/10, para. 19;  WT/WGTGP/M/11, para. 17
8  JOB(99)/5803WT/WGTGP/W/32
Page 4
procurement.  Some others have expressed the view that BOT contracts and at least some types of
"concessions" should be considered government procurement.9  In this regard, the point which has
been made in the discussion is that this term could refer to a range of situations which might have
different relationships to government procurement.  What was important was to have a proper
understanding of which BOT contracts and "concessions" fell within the general definition ofgovernment procurement, in particular what was for "governmental purposes".
10  The view has also
been expressed that, given the increased interest in some countries in securing private sector
involvement in the supply of services traditionally supplied by the government itself, there would be
merit in exploring the scope for transparency principles to apply to concessions in general.11  At the
invitation of the Working Group, the Secretariat circulated a Note on various issues involved in
concessions and BOT contracts (Job (00)/5657).
(iii) The extent to which government procurement, as defined, should fall within the scope
of commitments on transparency in government procurement
14. On this matter, the following main issues have arisen:
- whether the rules should apply to procurements by all or only some government
entities;
- whether procurement of services as well as of goods should be covered;- whether only procurement contracts above a certain threshold value should be
covered;
- whether procurement that is not open to foreign competition should be covered; and- what provision should be made for exceptions.
15. With regard to the first of these questions, the governmental entities to which the rules of a
transparency agreement might extend , three main views have been expressed:
- entities at all levels of government, including at sub-central levels, should be covered;
- central government entities and entities at the highest level of sub-central government
should be covered;
- only central/federal government entities should be covered.
12
The suggestion has also been made that coverage of sub-central entities by developing countries with
federal government structures could be a subject for special and differential treatment.13  I n  t h e
discussion on these ideas, the issues that have been raised include the feasibility of securing
agreement and compliance at all levels of government and the balance of rights and obligations
between Members with differing governmental structures.14
                                                     
9  WT/WGTGP/M/10, paras. 25-26;  Job (99)/6782, paras. 12 and 14
10  JOB(99)/6782, para. 17
11  WT/WGTGP/M/11, paras. 19-21
12  WT/WGTGP/W/26; WT/WGTGP/W/27;  Job (99)/5239; Job (99)/5803;  WT/WGTGP/M/10,
para. 20 ; WT/WGTGP/M/12, paras 4-6
13  WT/WGTGP/M/10, para. 20
14  JOB(99)/6782, para. 6WT/WGTGP/W/32
Page 5
16. Another issue on which differing views have been expressed is the extent to which
procurement by state enterprises should be covered .  Among the issues which have arisen in this
context have been the extent to which enterprises enjoy monopolistic positions or operate in a
competitive environment, the extent to which their procurements can be regarded as for
"governmental purposes", burdens which might be imposed on Members and the relationship with theprovisions of GATT Article XVII.
15
17. With regard to the coverage of goods and services , differing views have been expressed
about the coverage of services.  Those advocating that services should not be covered by a
transparency agreement have said that the issue of procurement of services is the subject of separate
work in the context of GATS and that the inclusion of services, an area for which procurement
procedures are less systemized in some countries than they are for goods, would make a transparency
agreement more challenging for developing countries.16  In response, it has been said that there is no
basis in the Working Group's mandate for distinguishing between goods and services;  that
transparency is as much an issue in regard to the procurement of services as it is in relation to goods;
that, as a practical matter, it was often difficult to distinguish between a goods procurement and a
services procurement since many procurements involved a mixture of goods and services;  and that
the existing international instruments, including  those of UNCITRAL and the World Bank, provide
for rules covering both goods and services.17
18. With regard to the question of the use of possible threshold values  of procurement contracts
for the purposes of determining coverage, the main issue has been whether their use might avoid
unnecessary possible burdens resulting from a transparency agreement.  The following main views
have been expressed:
- there should be a minimum threshold below which transparency obligations would
not apply;
- such thresholds might be a subject for special and differential treatment, with higher
levels for developing countries;
- there is no need for thresholds of general application, but they might apply to certain
rules where burdens might be disproportionate to the benefits accruing;
- the rules of a transparency agreement would not result in burdens that would warrant
the use of thresholds.18
19. With regard to the question of the coverage of contracts not open to foreign competition ,
one view has been that the transparency of such contracts is not a legitimate concern for an
international agreement and therefore should not be covered. Another view has been that it is
important to cover also such contracts since foreig n suppliers have an interest in clear information
indicating that certain contracts are not open to them.19
20. With regard to the question of exceptions , there has been discussion of whether a
transparency agreement should contain a general exception clause along the lines of GATT
Articles XX and XXI.  One view has been that such  provisions should be provided for.  Another view
has been to doubt the need for them, given the limited nature of the obligations envisaged in a
                                                     
15  JOB(99)/6782, para. 6;  WT/WGTGP/M/10, para. 21
16  WT/WGTGP/M/10, para. 22;  WT/WGTGP/M/11, paras. 7, 11 and 12
17  WT/WGTGP/M/10, para. 22;  WT/WGTGP/M/11, paras. 6, 9, 10, 13, 14;  JOB(00)/5645
18  JOB(99)/6782, para. 10;  WT/WGTGP/M/10, paras. 23-24;  JOB(99)/5239; WT/WGTGP/W/26;
WT/WGTGP/W/27
19  WT/WGTGP/M/10, para. 29WT/WGTGP/W/32
Page 6
transparency agreement.  It has also been suggested that exceptions should be envisaged to respond to
social and developmental objectives, including procurement for public distribution systems and
stabilization programmes for essential commodities.  In response, the point has been made that
procurement objectives aimed at meeting social and other public policy goals were not inconsistent
with the achievement of transparency.20
II. PROCUREMENT METHODS
(a) Information on provisions in existing international instruments and national procedures and
practices
21. All three of the international instruments covered by the Secretariat's note on the Synthesis of
the Information Available describe the permissible procurement methods and set out the parameters
for justified resort to these methods.  The principal procurement method foreseen in all threeinstruments is some form of open procurement.  Under certain circumstances, in which the open
procurement method is not considered to be appropriate, alternative methods are offered.  The special
conditions for the use of these other procedures are often related to ensuring adequate transparency.
For example, the Model Law contains a requirement that decisions to use alternative methods should
be supported in the record of the procurement proceedings by a statement of the grounds andcircumstances on which the procuring entity has justified the use of the method in question.  Under
the GPA, entities are required to prepare a report on each procurement awarded under limited
tendering including a statement of the conditions which prevailed.
21
22. The available information on the national legislation of Members indicates that it generally
sets out criteria for determining which type of procurement method would be appropriately used byprocuring entities.  The basic range of permissible procurement methods is the same in most
countries, although there are some variations based on national conditions and procurement policy
objectives.  Three broad categories of procedures are commonly distinguished:  public or open
tendering procedures;  selective or restricted tendering procedures;  and limited tendering, direct
contracting, or single tendering procedures.  Open and selective tendering procedures appear to be themain procedures in most countries.
22  The conditions and circumstances justifying the use of limited
tendering commonly specified in national legislation are listed in paragraph 24 of WT/WGTGP/W/6.
Typical features of national procedures in regard to the main tendering procedures are set out in
paragraphs 22 to 23 of the Synthesis of the Info rmation Available and in the submissions made by
Korea, the Czech Republic, Hungary, Japan and Morocco providing information on their respective
national procedures and practices.23
(b) Discussions in the Working Group
23. A common starting-point for the discussion on this matter appears to have been a broad
recognition that Members should retain flexibility to use different procurement procedures and that
the emphasis should be on ensuring transparency in the choice and use of the method in question
rather than on attempting to be prescriptive about the conditions governing which different methods
can be used.24
24. In discussions on the relationship between transparency and procurement methods, the
following categories of situation have been identified:
                                                     
20   WT/WGTGP/M/10, paras. 16 and 28;  WT/WGTGP/W/26;  WT/WGTGP/W/27
21  WT/WGTGP/W/6, paras. 14-18
22  WT/WGTGP/W/5;  WT/WGTGP/W/6, paras. 20-21
23  WT/WGTGP/W/7;  WT/WGTGP/W/9;  WT/WGTGP/W/12;  Job No. 939 and  WT/WGTGP/W/19
24  JOB(99)/6782;  para. 19;  WT/WGTGP/W/17;  WT/WGTGP/W/26;  WT/WGTGP/W/27;;
WT/WGTGP/W/31;  WT/WGTGP/M/10, para. 31; WT/WGTGP/M/11, para. 25-26WT/WGTGP/W/32
Page 7
- open procedures under which information on the procurement is made available
publicly and all are eligible to participate.  It has been said that this method is the
most transparent25;
- selective tendering where information on the procurement opportunity is made
available publicly as are the selection criteria to be employed.  It has been said thatthis method can be as transparent as the first
26;
- selective tendering where information on the procurement opportunity is made
available only to pre-selected qualified suppliers27;  and
- limited tendering (sometimes called individual, sole source, single source or direct
tendering), under which only a single supplier is contacted.  It has been said that this
method is inherently less transparent.  Much of the discussion in the Group on
procurement methods has related to the circumstances under which such a methodmay be employed and how to maximize the transparency in its use.
28
25. In regard to possible rules that might be negotiated on procurement methods, the following
ideas have been discussed:
- a requirement that each Member should specify in its national legislation the
circumstances under which procuring entities may use different procuring methods29;
- an obligation on Members to ensure that thei r entities comply with these provisions of
their national legislation
- a general commitment that, whatever the procurement method used, transparency
would be maximized to the extent possible at each stage of the procurement
process30;
- in regard to limited tendering:
- a general requirement that this method only be used in exceptional and
justifiable cases;
- an illustrative list of the circumstances warranting the use of this method;
- an exhaustive list of the circumstances warranting the use of this method;
- a requirement to publish notices of invitation to tender and contract award
notices;  and
- a requirement on procuring entities to maintain records and provide, in the
award of contracts notice, information on the reasons for the use of this
method.31
                                                     
25  JOB(99)/6782, para. 22
26  JOB(99)/6782, para. 21
27  JOB(99)/5239
28  JOB(99)/6782, para. 23;  WT/WGTGP/W/16
29  JOB(99)/6782, para. 24;  WT/WGTGP/M/10, para. 31;  WT/WGTGP/W/27
30  JOB(99)/6782, para. 20, WT/WGTGP/M/10, para. 31
31  JOB(99)6782, para. 26, WT/WGTGP/W/17WT/WGTGP/W/32
Page 8
26. With regard to the suggestions made on limited tendering, it has been said that spelling out
the exact circumstances and conditions justifying the use of this type of method might go beyond the
scope of a transparency agreement and impinge upon the ability of procuring entities to use the most
appropriate procurement method in the circumstances of each case.32  In regard to the possible
requirement for notices of invitation to tender and contract award notices to be published, the pointhas been made that this might put undue burdens on procuring entities since limited tendering was
often used for small-value procurements.
33
27. A further issue that has been raised in regard  to procurement methods is the use of direct
negotiation between the procuring entity and suppliers after the submission of initial tenders.  In this
connection, it has been said that it would be important to retain scope for the use of this method, but that,
in its use, transparency should be ensured.  This  could be done through the provision of advance
information on the use of this procedure, through en suring that all participating suppliers are given
information on a non-discriminatory basis and thr ough ex-post information on the contract award.34
III. PUBLICATION OF INFORMATION ON NATIONAL LEGISLATION AND
PROCEDURES
28. It should be noted that, in the Chairman's List  of Issues on the basis of which the Working
Group has been working, the matter of publication is treat ed separately from that of notification, i.e. the
supply of information to other WTO Members.  Notifi cation is the subject of Section X in the List of
Issues, which will be addressed in a later summary note.
(a) Information on provisions in existing international instruments and national procedures and
practices
29. The Model Law and the GPA require the public accessibility of relevant texts.  The GPA
explicitly requires Parties to publish any law, regulation, judicial decision, administrative rulings of
general application and any procedure regarding government procurement in such a manner as to
enable other GPA Parties and suppliers to become acquainted with them.35  The Secretariat's note on
the Synthesis of the Information Available indicate s that the national regulatory frameworks for
procurement procedures include:  national constitutions;  procurement laws;  regulations (legislativedecrees, cabinet orders, ministerial ordinances implementing various aspects of the basic procurement
law);  horizontal guidelines on government procurement policies in decentralized procurement
regimes;  horizontal laws on national budgets or th e public sector budget;  horizontal laws on financial
or budgetary management, public sector control or audit;  agency-specific purchasing regulations and
guidelines that implement national policies and procedures on procurement; specific laws at the sub-
central levels of government; the provisions of regional or other international agreements; separate
regulations on procurement of specific goods and services categories and construction works.
36
30. Reference has also been made to the existing publication obligations contained in Article X of
GATT 1994 and Article III of GATS relating to laws, regulations, judicial decisions and administrative
rulings of general application.  It has been observe d that government procurement is not excluded from
the scope of these provisions.  The suggestion has been made that any more specific publication
requirements that may be negotiated relating to tr ansparency in government procurement should be
without prejudice to these existing obligations.37
                                                     
32  WT/WGTGTP/M/10, para. 31;  JOB(99)/6782, para. 26
33  JOB(99)6782, para. 26
34  WT/WGTGP/M/10, para. 32
35  WT/WGTGP/W/6, para. 27
36  WT/WGTGP/W/6, para. 30
37   JOB(99)/6782, para. 35;  WT/WGTGP/W/26;  WT/WGTGP/W/27WT/WGTGP/W/32
Page 9
(b) Discussions in the Working Group
31. In the discussions on publication, the follo wing main issues have been raised:
- the type of information that should be made available;  and
- how this information should be made available.
(i) The type of  information to be made available
32. The suggestions that have been made generally provide for the publication or public
accessibility of laws and regulations.38  In addition, it has been suggested that a number of other types of
instrument might be covered by a publication obliga tion, including requirements that specifically relate
to government procurement and are of general applic ation, administrative rulings of general application
in connection with procurement, policy guidance a nd judicial decisions.  Some concerns have been
raised that an obligation to publish this range of material might be onerous and costly.39  An alternative
approach to designating certain types of government al instruments that has b een suggested would be to
focus instead on the substance of the information that  should be made available rather than on its legal
form, namely to require the availability of informa tion which defined the rules of general application to
be followed by entities in determining participation in tenders and decisions on awards.40
33. Suggestions have also been made specifying that changes or amendments  to the above
material should also be published or made readily and easily available, and indicating the time-framewithin which this should be done ("promptly", "in a timely manner").
41
(ii) How the information shoul d be made available
34. Two main approaches have been suggested:  one is to specify that the information be published,
in readily accessible media.42  The other would be to require that the information be readily and easily
accessible through a public medium, without specifying its  "publication".  It has been suggested that this
latter course could help meet some of the concer ns that have been expressed about the burden of
publishing administrative rulings and guidelines, judicial decisions, etc.43   It has also been suggested
that it should be left up to each Member to decide whether to use electronic media or not.44
35. With regard to the cost of accessing information, it has been suggested that fees should be
levied on a non-discriminatory basis and be limited to the cost of copying and despatch or limited inamount to the approximate value of the service rendere d.  In response it has been said that the issue of
cost is not a matter of transparency.  Concern has also been expressed about the need to take into
account also the cost of creating the information.  Governments should not be denied the possibility of
imposing appropriate fees provided that any f ees are charged in a non-discriminatory manner.
45
                                                     
38  Job Nos. 3245, 4099, 5239, 5803;  WT/WGTGP/W/26; WT/WGTGP/W/27;  WT/WGTGP/M/10,
para. 34
39   JOB(99)/6782, para. 33;  WT/WGTGP/M/10, para. 34
40   JOB(99)/6782, para. 32
41   Job Nos. 3245;  4099, 5239, 5803, WT/WGTGP/W/26;  WT/WGTGP/W/27
42  Job Nos. 5239, 5803;  WT/WGTGP/W/27
43  JOB(99)/6782, para. 34; WT/WGTGP/W/26
44  JOB(99)/6782, para. 34
45  Job No. 5803;  WT/WGTGP/W/26;  JOB(99)/6782, para. 36;  WT/WGTGP/M/10, para. 34WT/WGTGP/W/32
Page 10
36. With regard to language , it has been said that the obligation should be to provide the
information in a national language, while leaving Members free to provide information in other
languages, including WTO languages.46
37. The Working Group has addressed the question of whether there should be a requirement for
the establishment of an enquiry point  from which information on national legislation and procedures
can be obtained by interested parties in other Members, including suppliers.  Reference has been made
to the provisions of Articles III:4 and IV:3 of the GATS and also to those of Article IV:2 of that
Agreement and Article V:11 of the GPA which requires that contact/information points be established
to facilitate the access of developing countries to in formation.  On this issue, it has been stressed that
any requirements for providing contact or enquiry points should be without prejudice to decentralized
procurement systems such as those in federal states.  The suggestion has been made that, in respect of
decentralized national procurement systems, a central enquiry point from which information onindividual sub-central enquiry points can be obtained could be designated.
47
IV. INFORMATION ON PROCUREMENT OPPORTUNITIES, TENDERING AND
QUALIFICATION PROCEDURES
(a) Information on provisions in existing international instruments and national procedures and
practices
38. The three international instruments that th e Working Group has examined each set forth
minimum procedures for giving information on tendering opportunities and the relevant procedures
that the procurement agency should follow in order to obtain expressions of interest in a specificprocurement from potential suppliers.  Each of them foresees the publication of a notice of invitation
to participate in an official gazette or other official journal.  
Under the GPA, Parties are required to
publish the tender notice in a publicly accessible publica tion as indicated in each Party's Appendix II to the
Agreement .  The Model Law and the World Bank Guidelines require procurement notices also to be
published in a specialized publication of wide international circulation.48  Under the Model Law and
the World Bank Guidelines, the procuring entity is re quired to respond to any request for clarification
submitted within a reasonable time, as well as communicating the clarification to all otherparticipating suppliers.  Under the GPA, reasonab le requests for explanations relating to tender
documentation under open and selective procedures must be promptly replied to.  Replies to such a
request from a participating supplier shall be provided on condition that such information does not
give that supplier an advantage over his competitors.
49
39. The information available to the Group indicates that, although the minimum standard
requirements regarding information to be provided are largely the same in international instruments
and in national legislation, in national legislation the level of detail of information providedrespectively, in initial tender notices and in the subsequent tender documentation, vary from Member
to Member.
50  In national legislation the printed media in which procurement opportunities are
advertised differ widely, ranging from government gazettes or official journals to local language
newspapers.  Additional forms of advertising such as periodic handouts or posting on the notice
boards of the procuring entity are also used.51  Under the GPA, entities must publish also a summary
of the main elements of the information in a tender notice in one of the official WTO languages.52
                                                     
46  JOB(99)/6782, para. 37;  JOB(99)/5239
47  JOB(99)/6782, para. 38;  Job No. 5239; WT/WGTGP/M/10, para. 33
48  WT/WGTGP/W/6, para. 34
49  WT/WGTGP/W/6, paras. 56-57
50  WT/WGTGP/W/6, paras. 43-55
51  WT/WGTGP/W/6, paras. 37-42
52  WT/WGTGP/W/6, para. 47WT/WGTGP/W/32
Page 11
(b) Discussions in the Working Group
40. In the discussions in the Working Group, the importance of timely, sufficiently detailed and
readily available prior information on procurement opportunities for ensuring transparency in
government procurement has been widely emphasized.  The discussion has focused on how thisshould be best achieved and what provisions might be envisaged in a possible multilateral framework.
41. It has been suggested that the information made available should be sufficient to enable
suppliers to assess their interest in a particular procurement and, should they wish to participate in it,
to submit responsive bids.
53  One general issue, on which differing suggestions have been made, is
whether a possible multilateral framework should appr oach this matter by containing rules about the
information that should be made available at each stage of the procurement process, in particular at
the stage of issuance of notices of invitation to tender and at the stage of tender documentation, orwhether the approach of specifying the information that should be made available in general be
adopted, leaving it to each Member to determine the stage at which each component of the
information might be supplied.
 54
42. With regard to the specific pieces of information that should be made available, a number of
approaches have been suggested:
- to include a specific list of minimum requirements (to be met either at each stage of
the procurement process or in total - see preceding paragraph)55;
- to provide for an illustrative list of the prior information that should be made
available56;
- to have no list of prior information, on the grounds that this would be unnecessarily
prescriptive, but to rely on general guiding principles of the sort set out at the
beginning of the preceding paragraph.57
43. With regard to the minimum information that might be specified in notices of invitation to
tender and in tender documentation, the following main categories of information have been
suggested by some of the Members advocating such a course:
- the name of the procuring entity;
- the goods or services to be procured/the procurement outcome to be achieved;- the procurement procedure used;- any (pre-)qualification requirements;- any restrictions on market access and/or domestic preferences granted;- the deadlines for the submission of tenders;
- the criteria for evaluation of bids and award of contracts, including technical
specifications; and
                                                     
53  JOB(99)/6782, para. 53;  Job No. 5239;  WT/WGTGP/W/26
54  JOB(99)/6782, para. 53,  WT/WGTGP/W/26
55  WT/WGTGP/W/26;  WT/WGTGP/W/27;  JOB(99)/5239;  JOB(99)/5803
56  JOB(99)/6782, para. 54
57  JOB(99)/6782, para. 45;  WT/WGTGP/M/10, para. 35WT/WGTGP/W/32
Page 12
- the date and time for the opening of tenders.58
Those who have suggested stage-by-stage requirements have broadly suggested that the first six
pieces of information should be provided in the notice of invitation to tender, while the last two,
together with amplification of the first six, could be provided in the tender or bid documentation.59
44. A point which has been discussed at some length in the Working Group with regard to
evaluation criteria is the suggestion that information should be made available on preferences to
national supplies and suppliers  as well as other measures in favour of domestic supplies or suppliers
such as offsets.  In this regard, th e following views have been expressed:
- while the nature and extent of such preferences is not within the scope of the work of
the Working Group, the advance provision of information on such preferences is an
essential component of transparency since it enables foreign tenderers to assess the
extent to which they might have an interest in entering a specific procurement
process60;
- rules on information on procurement opportunities should only apply in cases where
national markets are open to foreign suppliers.61
45. In regard to the way information on national preferences might be made available, the
following views have been expressed:
- full information should be provided in the notices of invitation to tender/tender
documentation, by setting it out in detail and/or by making references to applicable
laws and regulations62;
- information on national preferences need only be included to the extent it was not
adequately provided through laws or regulations of general application.63
46. In regard to the way in which information should be made available , one approach has
been to suggest that this should be done through publication in a readily accessible medium64 while
another has favoured a requirement that the information should be publicized through an accessible
source.65
47. There has been discussion over the extent to which an effort to make information available
at the international level should be called for.  One view has been that the level of availability
should be proportionate to the likely level of interest in the procurement, i.e. that where a procurement
opportunity is likely to attract international interest, information should be made available through a
source to which potential foreign suppliers had access.  Another view was that there should be no
requirement to publish in international publications;  it was up to interested foreign suppliers to keep
track of national publications.66
                                                     
58  WT/WGTGP/W/26;  WT/WGTGP/W/27;  JOB(99)/5239;  JOB(99)/5803
59  JOB(99)/5803
60  JOB(99)/6782, paras. 57-59,  JOB(99)/5803;  WT/WGTGP/M/10, para. 36
61  JOB(99)/6782, para. 48
62  JOB(99)/6782, para. 58;  WT/WGTGP/M/10, para. 36
63  JOB(99)/6782, para. 58;  WT/WGTGP/M/10, para. 36
64  JOB(99)/5239
65  WT/WGTGP/W/26
66  JOB(99)/6782, para. 51WT/WGTGP/W/32
Page 13
48. In regard to the media that might be used, there has been a wide view that each government
should be free to use printed and/or electronic media , with electronic publication an option and not
an obligation.67
49. In regard to the question of situations where information obligations might not need to apply,
the use of small-value procurements  has been discussed.  It has been suggested that publication
requirements might not apply to, or might be less strict for, low-value procurements in order to avoid
undue administrative costs.  Another view has been that there should be no threshold level and that
suitably phrased requirements regarding the availability of information would enable Members to
avoid undue administrative burdens.68
50. The question of the extent to which prior information requirements should apply to
procurement conducted under selective and limited tendering  methods has also been discussed.  In
this regard, a number of approaches have been suggested:
- certain basic types of information should be provided whatever the procurement
method employed for the purposes of achieving maximum transparency69;
- the general rules on prior information should only apply to government procurement
through open tendering procedures.  This is an approach that was suggested in anumber of the proposed texts submitted in 1999.  It should be noted that some of
these texts also suggested rules regarding the transparency of qualification procedures
which might be used in selective tendering.
70
51. With regard to situations where invitations to tender are supplied only to pre-qualified or
pre-selected suppliers , it has been suggested that there should be a requirement that information on
how to qualify or be selected be published in a readily accessible medium at a timing and in a manner
which would reasonably allow eligible suppliers to apply for selection.71  It has also been suggested
that there should be some rules regarding the situation where a qualification process covers multiple
procurements over a period of time and is not open at all times to applications from interestedsuppliers, such as periodic publication of an invitation to apply for qualification and the availability of
current lists of current qualified suppliers.
72  It has further been suggested that, where information is
made available only to pre-selected or pre-qualified suppliers, all such suppliers should be treated in a
non-discriminatory way in this regard.73
52. Regarding modifications to and clarification of information , the emphasis in the Working
Group has been on non-discriminatory dissemination of any such information.  It has also been
suggested that any amendments or re-issue of a notice of invitation to tender pursuant to changes ininformation contained in tender notices and tender documents including those concerning evaluation
criteria and technical specifications, should be made available through the same means used for
providing the original information and the relevant publications should be given the same circulation
as the original document.
74   In particular, all those suppliers who had originally ordered tender
documents or had indicated an interest in the procurement opportunity should have any additional
                                                     
67  JOB(99)/6782, para. 51
68  JOB(99)/6782, para. 51
69  JOB(99)/6782, para. 46
70  JOB(99)/5239;  JOB(99)/5803;  WT/WGTGP/W/26;  WT/WGTGP/W/27
71  JOB(99)/5239;  WT/WGTGP/W/27
72  WT/WGTGP/W/27
73  JOB(99)/5803
74  JOB(99)/5803;  WT/WGTGP/W/27WT/WGTGP/W/32
Page 14
information transmitted to them through the same means as the one used for providing the original
information.75
53. As regards clarification of information in tender documents, the point has been made that
information provided in response to an individual request for clarification should be transmitted
simultaneously to all other participating suppliers. However, it has been pointed out that this might in
some cases be impracticable, for instance in cases where the requests from suppliers for further
information had been received at different contact points and that this might only be feasible in the
case of high-value procurements with limited participation.76
54. There has been a discussion in the Working Group regarding whether tender information
should be published in a language  other than national language, in particular where there should be a
requirement to provide summary information in a WTO language on procurement opportunities and,
if so, which opportunities.77  The view has been expressed that requirements concerning publication of
notices of invitations to tender should be limited to publication in a national language since the
translation into a WTO language of every tender notice would entail Members incurring undue
administrative costs and could become too burdens ome.  Another view has been expressed that
procuring authorities should have the discretion to decide whether translation of notices should be
limited to those procurement opportunities that might be of interest to international suppliers. On theother hand, it has been suggested that, where possible, tender notices should be published in a WTO
language.
78  A further suggestion has been that, in addition to publication in the official national
language, a summary might be published in one of the WTO languages containing the main details of
the tender information and small-value procurem ents could be exempted from this requirement.79
55. The Working Group has considered the question of the extent to which the content of
specifications  should be addressed in a transparency agreement.  Suggestions have been made that
requirements should be specified in a clear and objective manner and defined in terms of required
functional performance to the extent possible.80  It has also been suggested that, wherever possible,
technical specifications based on internationally agreed or other relevant standards should be
employed.  On the other hand, the relevance of such requirements to transparency has beenquestioned.
81
56. The question of advice from suppliers on the development of specifications  has been the
subject of suggestions.  It has been suggested that such advice should be sought and applied in a non-
discriminatory manner and that, if advice has been obtained from a particular supplier, other suppliers
should be informed or that supplier should be ineligible to participate in the procurement.82
V. TIME-PERIODS
(a) Information on provisions in existing international instruments and national procedures and
practices
57. Each of the three international instruments that the Working Group has reviewed provides
that suppliers must be granted a sufficient period of time to prepare their tenders.  The Model Lawrecognizes that the length of that period of time may vary from case to case depending on the
circumstances of the given procurement and it is left to the procuring entity to fix the deadline by
                                                     
75  JOB(99)/6782, para. 64
76  JOB(99)/6782, para. 63
77  JOB(99)/6782, para. 66
78  JOB(99)/6782, para. 65;  WT/WGTGP/M/10, para. 40
79  JOB(99)/6782, paras. 66-67
80  WT/WGTGP/W/26
81  JOB(99)/6782, para 61;  WT/WGTGP/M/10, para. 39
82  Job No. 5803;  WT/WGTGP/W/27WT/WGTGP/W/32
Page 15
which tenders must be submitted.  The GPA prescribes certain minimum deadlines that must be
allowed for the preparation, submission and receipt of tenders to enable responsive tendering and for
potential suppliers to prequalify.  The relevant provisions also contain general considerations that
should govern when entities set time-periods for tendering and delivery.83 Most Members'
procurement legislation establishes minimum time-periods, with which the purchasing entities mustcomply.  In some countries there are no mandatory requirements and individual government agencies
have discretion in setting the minimum time-periods.
84
(b) Discussions in the Working Group
58. Suggestions made in the Working Group have generally favoured provisions on time-periods
that would be couched in terms of the considerations  that should be taken into account in setting those
periods rather than in terms of prescribing minimum periods.  The points have been made that
time-periods in national practice varied significantly and that procuring entities needed discretion toestablish appropriate periods on a case-by-case basis, having regard to the type of procurement.
85
59. The suggestion has been made that time-periods should be sufficient to enable interested
suppliers to obtain qualification documentation where appropriate and tender documentation and to
prepare and submit responsive bids in time.86  With regard to the criteria of "sufficiency", the concern
has been expressed, that the meaning of the term is unclear and that this might have consequences in adispute settlement context.  In response, it has been clarified that the term should be taken to mean
that procuring entities retained considerable fl exibility to determine time-periods for individual
procurements.  A further view has been that the term "reasonable" should be used;  this would
provide, for instance, for emergency situations in which it might not be possible to provide for
adequate or sufficient time-periods.
87
60. It has also been suggested that some considerat ions taking into account the characteristics of
individual procurements might be specified, in particular the circumstance of the procurement,
including the likely level of interest, as well as the complexity of the envisaged procurement.88  One
concern that has been expressed in this connection is how this would relate to situations in many
jurisdictions where time-limits are prescribed by national law.89
61. Furthermore, it has been stressed that there should be non-discrimination between potential
suppliers with respect to the application of time-periods.  The proposed texts suggest that the time
allowed for the submission of bids should be the same for all suppliers.  On the other hand, the view
has been expressed that Members should not be required to set time-periods to suit foreign suppliers,
who should be treated on a national treatment and MFN basis. 90  The question has also been raised as
to whether time-periods are an aspect of transparency.91
62. Finally, the point has been made that time-periods should be specified in tender notices to
ensure transparency.  Any changes in the time-peri ods should be made known to all suppliers in the
tendering process or the relevant information be made generally available from an accessible source.92
                                                     
83  WT/WGTGP/W/6, paras. 61-65
84  WT/WGTGP/W/6, para. 66
85  JOB(99)/6782, para. 69;  WT/WGTGP/M/10, para. 42;  WT/WGTGP/M/11, paras. 27-28
86  WT/WGTGP/W/26;  WT/WGTGP/W/27;  Job No. 5803;  WT/WGTGP/M/10, para. 43
87  JOB(99)/6782, para. 71;  Job No. 5239
88  JOB(99)/6782, para. 70;  WT/WGTGP/M/10, para. 43
89  JOB(99)/6782, para. 71
90  JOB(99)/6782, para. 70
91  WT/WGTGP/M/10, para. 42
92  Job Nos. 3777 and 4099;  JOB(99)/6782, para. 71WT/WGTGP/W/32
Page 16
One proposal also requires that Members should define in advance their policy on whether and in
what circumstances late tenders may be accepted.93
                                                     
93  WT/WGTGP/W/26WT/WGTGP/W/32
Page 17
ANNEX
DOCUMENTS OF THE WORKING GROUP ON
TRANSPARENCY IN GOVERNMENT PROCUREMENT
The Working Group held 13 formal meetings during the period 1997 to 2001.  The reports on
these meetings (WT/WGTGP/M/1-13) and the annual reports of the Working Group to the General
Council (WT/WGTGP/1-5) reflect the work done so far in the Working Group pursuant to the
mandate of the Singapore Ministerial Conference in 1996.  The discussions in the Working Group on
the issues before it have been recorded mainly in the note by the Chair "List of the Issues Raised and
Points Made" (Job (99)/6782), last revised in November 1999;  and subsequently in the reports of the
meetings held in 2000 and 2001, (WT/WGTGP/M/10-12) (List A).
Other documents that have been made available include:
- Members' submissions relating to specific issues.  Over the period 1997 to 2000 13 Members
have made two or more such submissions.  An informal note "List of Proposals on Items III-
VII of the Checklist" (JOB(00)/3276), reflectin g the proposals made on items III-VII in a
succinct form, which identifies the source of the different proposals and summarizes the
written and oral comments made on these proposals, most recently revised in May 2000, was
prepared by the Secretariat as an auxiliary informal paper for the use of Members wanting todraw on it (List B).
- Information on national procedures and practices submitted by ten Members on national
procedures and practices in their countries;  the responses to the questionnaire on government
procurement of services in the Working Party on GATS Rules and APEC/GPEG Surveys on
Government Procurement Systems, updated ve rsions of which are available on the APEC
Website (www.apec.sec) (List C).
- Information provided on work in intergovernmental organisations and in the context of
regional arrangements (List D).
- Notes by the Secretariat relating to various issues under discussion in the Working Group
(List  E).WT/WGTGP/W/32
Page 18
29 May 2002
LIST A –Documents related to the Working Group's work
WT/WGTGP/1-5 Annual Reports of the Working Group to the General
Council1997 – 2001
WT/WGTGP/M/1-13 Reports of the Meetings of the Working Group July 1997 –
September 2001
JOB(99)/6782 List of the Issues Raised and Points Made – Sixth
Revision12 November 1999
JOB (00)/3231 Annotated draft agenda for the meeting of  7-8 June
200029 May 2000
List B-Members' Submissions Relating to Specific Issues
2002
Australia WT/WGTGP/W/31 Methods of Procurement 15 May 2002
2000
Informal
Note by theSecretariatJOB(00)/3276 List of Proposals on Items III-VII of the Checklist
– – Third Revision2 May 2000
Switzerland JOB(00)/5645 Why the Scope of a Future Agreement on
Transparency in Government Procurement Should
Cover Goods and Services20 September 2000
United
StatesWT/WGTGP/W/28 Proposal for a Work Programme for Coordinating
International Technical Assistance withImplementation of a Potential Agreement onTransparency in Government Procurement6 June 2000
1999
Hungary,
Korea,
Singapore
and the
United
StatesWT/WGTGP/W/27 Preparations for the 1999 Ministerial Conference -
The WTO's Contribution to Transparency in
Government Procurement9 November 1999
European
CommunityWT/WGTGP/W/26 Elements for an Agreement on Transparency in
Government Procurement5 November 1999
Australia Job No. 5803 Agreement on Transparency in Government
Procurement - "Principles-based" Conceptual Draft
from Australia5 October 1999
Japan Job No. 5239 Transparency in Government Procurement - Draft
Text for an Agreement13 September 1999
Poland Job No. 3777 Time-limits 29 June 1999
United
StatesWT/WGTGP/W/23 Domestic Review Mechanisms 24 June 1999
Canada Job No. 3131 Contract Award Information 2 June 1999
Australia Job No. 1781 Transparency of Decisions on Qualification 26 March 1999
Norway Job No. 1067 Publication of Information on National Legislation
and Procedures25 February 1999
Australia Job No. 1043 Rights and Responsibilities of Government as a
Buyer, Value for Money in GovernmentProcurement, Accountability and Due Process24 February 1999WT/WGTGP/W/32
Page 19
United
StatesJob No. 1027 Evaluation Criteria and Technical Specifications 24 February 1999
European
CommunityJob No. 699 Methods of Procurement 9 February 1999
Venezuela Job No. 481 Transparency in Government Procurement and the
Fight Against Bribery28 January 1999
1998
Switzerland Job No. 3708 Minimal Requirements for Relevant Information to
be Published in Tender Notices22 June 1998
Venezuela Job No. 3295 Particular Characteristics of Government
Procurement, Privatization and Concession-grantingSystems15 June 1998
Norway Job No. 3245 Contribution to the Working Group on Transparency
in Government Procurement Ensuring that
Transparency in Procurement Policies and Practices
is Achieved11 June 1998
European
CommunityWT/WGTGP/W/18 Technical Assistance 25 May 1998
European
CommunityWT/WGTGP/W/17 Ensuring that Transparency in Procurement Policies
and Practices is Achieved25 May 1998
Australia WT/WGTGP/W/14 Information on Procedures and Practices on
Transparency in Government Procurement23 February 1998
United
StatesWT/WGTGP/W/16 Transparency in Procurement Methods 19 February 1998
United
StatesWT/WGTGP/W/15 Review Mechanisms 19 February 1998
Australia Job No. 136 Principles of Government Procurement 12 January 1998
1997
Hong Kong,
ChinaWT/WGTGP/W/10 Information on Procedures and Practices on
Transparency in Government Procurement16 December 1997
Japan Job No. 6329 Key Elements on Enhanced Transparency 4 November 1997
Switzerland Job No. 6328 Elements of a Study on Transparency in Government
Procurement3 November 1997
Norway Job No. 5220 Elements of Transparency under the WTO Working
Group on Transparency in Government Procurement24 September 1997
United
StatesJob No. 4133 Guiding Principles 21 July 1997
Canada Job No. 4099 Elements Relating to Transparency in Government
Procurement21 July 1997
European
CommunityWT/WGTGP/W/5 National Procedures and Practices Relating to
Transparency in Government Procurement21 July 1997
Japan Job No. 2860 Elements of Transparency in Government
Procurement22 May 1997
LIST C -Information on National Procedures and Practices
2001
Tunisia WT/WGTGP/W/30 Public Procurement Regime in Tunisia 9 May 2001
1998
Turkey WT/WGTGP/W/21 National Procedures and Practices 2 October 1998
Morocco WT/WGTGP/W/19 National Procedures and Practices 20 July 1998
Uruguay WT/WGTGP/W/13 National Procedures and Practices 16 February 1998
Czech
RepublicWT/WGTGP/W/12 National Procedures and Practices 16 January 1998WT/WGTGP/W/32
Page 20
Slovenia Job No. 3711 Public Procurement in Slovenia 17 June 1998
Japan Job No. 939 Transparency related proposal  by the CCCB in Japan  19 February 1998
1997
Korea WT/WGTGP/W/7 National Procedures and Practices 30 October 1997
New Zealand Job No. 5616 National Procedures and Practices 10 October 1997
Hungary WT/WGTGP/W/9 National Procedures and Practices 16 December 1997
Poland Job No. 6691 Elements of Transparency in the Polish Procurement
System3 November 1997
Tunisia WT/WGTGP/W/8 National Procedures and Practices 31 October 1997
LIST D-Information on the work of Intergovernmental Organizations and in the context of Regional Arrangements
WT/WGTGP/W/1 Presentation by the Representative of UNCITRAL (the
United Nations Commission on International TradeLaw) on the UNCITRAL Model Law and the RelevantActivities of the UNCITRAL10 July 1997
WT/WGTGP/W/2 Presentation by the Representative of the World Bank
on the World Bank Guidelines and the RelevantActivities of the World Bank10 July 1997
WT/WGTGP/W/20
and Addenda 1 to 9Communications received from UNCITRAL, OECD,
the Asian Development Bank, the African
Development Bank, IMF, APEC Government
Procurement Experts Group, the European Bank forReconstruction and Development, ITC, UNDP andUNOPS providing information on the availability oftechnical cooperation programmes in the area ofgovernment procurement1998 – 2000
APEC/
GPEGWT/WGTGP/W/24 APEC Non-binding Principles on Government
Procurement Developed by the Experts Group21 September 1999
APEC/
GPEGWT/WGTGP/W/22 APEC Non-binding Principles of Accountability and
Due Process7 April 1999
APEC/
GPEGWT/WGTGP/W/11 APEC Non-Binding Principles on Government
Procurement:  Transparency19 December 1997
APEC/
GPEGWT/WGTGP/W/4
S/WPGR/W/21APEC Government Procurement Experts Group –
APEC Surveys on Government Procurement Systems15 July 1997
LIST E - Notes by the Secretariat on Various Issues
WT/WGTGP/W/3 Transparency-related Provisions in Existing International
Instruments on Government Procurement Procedures
and in WTO Agreements9 July 1997
WT/WGTGP/W/6 Synthesis of the Information Available on Transparency-
related Provisions in Existing International Instruments on
Government Procurement Procedures and on NationalPractices- Note by the Secretariat14 October 1997
WT/WGTGP/W/25 Documents of the Working Party on GATS Rules Relating to
Concessions - Note by the Secretariat27 September 1999
Job(00)/5657 Concessions and BOT Contracts – Note by the Secretariat 20 September 2000
WT/WGTGP/W/29 Technical Cooperation Activities of Intergovernmental
Organizations - Note by the Secretariat13 September 2000
__________