general agreement tar i ffs and trade practical guide to the gatt agreement on on

296 Pages·2007·14.06 MB·English

GENERAL AGREEMENT ON
TAR I FFS AND TRADE
PRACTICAL GUIDE TO THE GATT
A G R E E M E N T ON
G V E R N M E N T P R C U R E M E N T
O O
Revised
LOOSE-LEAF SETS
FEBRUARY 1989
89-0260
Price: SwF 30
PRACTICAL GUIDE TO THE
AGREEMENT ON GOVERNMENT PROCUREMENT
REPLACEMENT PAGES OF LOOSE-LEAF SETS
Following decisions by the Committee on Government Procurement, the
GATT secretariat introduced in March 1985 - in loose-leaf form - a
Practical Guide to the Agreement on Government Procurement. The Guide has
no legal status in itself, but is intended to give correct and reliable
information relating to the functioning of the Agreement
Two copies of the revised Practical Guide are hereby made available to
GATT contracting parties. Additional copies are available to delegations
and the general public on subscription. A stock is held for sale in the
secretariat.
TABLE OF CONTENTS
Page
PART I: Objectives and Scope of the Agreement
Introduction 1
Objectives 1
Scope and Coverage 2
What does the Agreement do for the Supplier? 3
Special and Differential Treatment for Developing Countries 9
Further Negotiations 5
PART II: Application of the Agreement in the Signatories
Austria 11
Canada 19
European Economic Community
- General 32
- Member States of the European Economic Community:
- Belgium 37
- Denmark 44
- France 50
- Federal Republic of Germany 63
Greece 69
- Ireland 70
- Italy 76
- Luxembourg 82
- Netherlands 87
- Portugal 95
- Spain 96
- United Kingdom 97
Finland 110
Hong Kong 118
Israel 122
Japan 131
Norway 147
Singapore 158
Sweden 163
Switzerland 182
United States 190
Page
PART III: Annex to the Agreement:
Lists of Entities to which the Agreement applies 209
Austria 210
Canada 218
European Economic Community:
Part I: Notes applying to all member States
covered by the Agreement 221
Part II: List of supplies and equipment purchased
by Ministries of Defence that are covered
by the Agreement in the EEC 222
Entity Lists of Individual Member States covered by
the Agreement:
- Belgium 225
- Denmark 231
- France 235
- Federal Republic of Germany 249
- Ireland 251
- Italy 252
- Luxembourg 254
- Netherlands 256
- United Kingdom 258
Finland 263
Hong Kong 265
Israel 266
Japan 268
Norway 274
Singapore 277
Sweden 278
Switzerland 281
United States 286
PRACTICAL GUIDE TO THE GATT AGREEMENT ON GOVERNMENT PROCUREMENT
PART I
OBJECTIVES AND SCOPE OF THE AGREEMENT
INTRODUCTION
The GATT Agreement on Government Procurement is one of the agreements
which resulted from the Tokyo Round of Multilateral Trade Negotiations,
which were concluded in the GATT in 1979. The Agreement came into force on
1 January 1981. Following further negotiations, a Protocol Amending the
Agreement entered into force on 14 February 1988.
To date, the contractual rights and obligations under the Agreement
apply to suppliers and goods from Austria, Canada, the European Community
(Belgium, Denmark, France, the Federal Republic of Germany, Ireland, Italy,
Luxembourg, the Netherlands and the United Kingdom), Finland, Hong Kong,
Israel, Japan, Norway, Singapore, Sweden, Switzerland and the United
States.
The Agreement has opened major new sales opportunities in a market
which has traditionally been outside of international rules and frequently
closed to competitive bidding. The value of all contracts that were
awarded under the Agreement in 1985, amounted to approximately
US$24 billion.
The present practical guide has been drawn up to inform the business
community and other interested circles about the rules of the Agreement in
general, and specific sales opportunities created by the Agreement.
OBJECTIVES
The Agreement establishes for the first time an agreed international
framework of rights and obligations with respect to laws, regulations,
procedures and practices regarding government procurement. Its aim is to
achieve greater liberalization and expansion of world trade.
It provides that laws, regulations, procedures and practices regarding
government procurement should not be prepared, adopted or applied to
foreign or domestic products and to foreign or domestic suppliers so as to
afford protection to domestic products or suppliers and should not
discriminate among foreign products or suppliers. As of 14 February 1988,
it is stipulated that locally-established suppliers shall not be treated
less favourably than another locally-established supplier on the basis of
degree of foreign affiliation or ownership. There shall be no
discrimination against locally-established suppliers on the basis of the
country of production of the good being supplied, provided that the country
of production is a Party to the Agreement.
1The text of the Revised (1988) Text of the Agreement on Government
Procurement is available from the GATT secretariat, Centre William Rappard,
154 rue de Lausanne, 1211 Geneva 21, Switzerland; price Sw F 4.00.
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The Agreement provides transparency of laws, regulations, procedures
and practices regarding government procurement.
It establishes international procedures on notification, consultation,
surveillance and dispute settlement with a view to ensuring a fair, prompt
and effective enforcement of the Agreement and to maintain the balance of
rights and obligations at the highest possible level.
SCOPE AND COVERAGE
The Agreement applies when the following conditions are met:
- that the procurement which, in the revised Agreement covers purchases
as well as leasing, rentals, or hire-purchases, with or without an
option to buy, is for products (services only to the extent that they
are incidental to the supply of products and cost less than the
products themselves);
- that the buyer or leaser is a governmental entity or agency which the
government in question has listed in an annex (Annex I) to the
Agreement (reproduced in Part III below); and
- that the procurement is of a value of SDR 130,000 (or more). This
so-called threshold is fixed every second year in the national
currencies of each signatory country (see country chapters in
Part II); for 1988-89, the corresponding figure in United States
dollars is, for instance, US$156,000. (As originally drafted, the
threshold was fixed at SDR 150,000.)
The Agreement only applies to procurement by governmental entities
listed in Annex I to the Agreement. It does not apply to procurement by
regional or local governments or authorities, even when such procurements
are financed through central or federal government funds. However, in
accordance with the Agreement, signatories have informed entities not
covered, including those of regional and local governments or authorities,
of the Agreement and the overall benefits it entails.
To join the Agreement, a country is required to make a contribution by
way of a list of entities. For developing countries, this contribution
would be in relation to their individual development, financial and trade
needs with least-developed countries making the smallest contribution.
The Agreement does not cover certain products procured by defence
ministries. General and security exceptions are also provided for.
Procurement made under tied aid are excluded from the Agreement. The
various signatories have also certain so-called "specific derogations" from
the general rules; these are specified in the respective entity lists.
No procurement requirement shall be divided with the intent of
escaping the threshold. The Agreement has also detailed rules on the
calculation of the contract value, for instance when contracts are awarded
in separate parts, in the case of purchases, lease, rental, 'or
hire-purchase and in the case of option clauses.
1Special
Drawing Rights: the International Monetary Fund's
international reserve unit of account.
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WHAT DOES THE AGREEMENT DO FOR THE SUPPLIER?
The Agreement contains a number of detailed procedural obligations
which procuring entities have to fulfil so as to ensure the effective
application of its basic principles. These may be briefly summarized as
follows.
Entities shall use opener selective tendering procedures and only in
closely defined circumstances contact suppliers individually (single
tendering). Open tendering procedures are those under which all
interested suppliers may submit a tender. Selective procedures are
those under which suppliers invited to do so may submit a tender.
Qualification of suppliers
Any conditions for participation shall be published in adequate
time, shall be limited to those which are essential to ensure the
firm's capability to fulfil the contract, shall be no less favourable
to foreign suppliers than to domestic suppliers and shall not
discriminate among foreign suppliers. The process of, and the time
required for, qualifying suppliers shall not be used in order to keep
foreign suppliers off a suppliers' list or from being considered for a
particular proposed purchase. Entities maintaining permanent lists of
qualified suppliers shall ensure that suppliers may apply for
qualification at any time, and that all qualified suppliers so
requesting are included within a reasonably short time. Any supplier
having requested to become qualified shall be advised of the decision
in this regard. Qualified suppliers included on permanent lists shall
be notified of the termination of any such lists or of their removal
from them. Each entity and its constituent parts is now also expected
to follow a single qualification procedure and shall not provide to
any potential supplier information with regard to a specific
procurement in a manner which would have the effect of precluding
competition.
Notice of proposed purchase and tender documentation
Entities shall publish a notice of each proposed purchase in the
appropriate publication (listed country-by-country in Part II below);
each notice shall indicate:
(a) the nature and quantity, including any options for additional
quantities, of the products to be supplied and, if possible, an
estimate of the timing when such options may be exercised; in
the cases of recurring contracts, the nature and quantity and, if
possible, an estimate of the timing of the subsequent tender
notices for the products to be procured;
(b) whether the procedure is open or selective;
(c) any delivery date;
(d) the address and final date for submitting applications or for
receiving tenders, as well as language requirements;
(e) the address of the entity awarding the contract and information
necessary for obtaining specifications and other documents;
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(f) any requirements, guarantees and information needed from
suppliers;
(g) the amount and terms of payment of any sum payable for the tender
documentation;
(h) whether the entity is inviting offers for purchase, lease,
rental, or hire-purchase, or more than one of these methods.
The entity shall also publish in either English, French or
Spanish a summary of the notice containing at least the following:
(a) subject matter of the contract;
(b) time-limits set for the submission of tenders or an application
to be invited to tender; and
(c) addresses from which documents relating to the contracts may be
requested.
Additional rules on selective tendering procedures
Entities shall invite tenders from the maximum number of domestic
and foreign suppliers, consistent with the efficient operation of the
procurement system. They shall select the suppliers to participate in
the procedure in a fair and non-discriminatory manner. Entities
maintaining permanent lists of qualified suppliers shall publish
annually (in publications listed country-by-country in PART II below)
a notice enumerating the lists maintained in relation to products or
categories of products, indicating the conditions to be filled by
potential suppliers and how those conditions are verified, the period
of validity of the lists, and the formalities for their renewal. It
is also requested that if, after publication of a tender notice, a
supplier not yet qualified requests to participate in a particular
tender, the entity shall promptly start the qualification procedure.
Amendment or re-issue of a notice
An amendment or re-issued notice shall be given the same
circulation as the original documents. Any significant information
given to one supplier with respect to a particular proposed purchase
shall be given simultaneously to all other suppliers concerned in
adequate time to permit the suppliers to consider such information and
to respond to it.
Time-limits
These shall be adequate to allow foreign as well as domestic
suppliers to prepare and submit tenders before the closing of the
tendering procedures. Consistent with the entity's own reasonable
needs, any delivery date shall take into account such factors as the
complexity of the proposed procurement, the extent of sub-contracting
anticipated, and the realistic time required for production,
de-stocking and transport of goods from the points of supply.
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In open procedures, the period for the receipt of tenders shall
in no case be less than forty days from the date of publication of the
notice. In selective procedures not involving the use of a permanent
list, the period for submitting an application to be invited to tender
shall in no case be less than twenty-five days from the date of
publication. The period for receipt of tenders shall in no case be
less than forty days from the date of issuance of the invitation to
tender. In selceItive procedures involving the use of permanent lists
of qualified suppliers, the period for receipt of tenders shall in no
case be less than forty days from the date of the initial issuance of
invitations. The periods mentioned may be reduced to twenty-five days
in the case of the second or subsequent publication dealing with
recurring contracts. All periods may be reduced where a state of
urgency duly substantiated by the entity renders impracticable the
periods in question, but shall in no case be less than ten days.
Language requirements
If an entity allows tenders to be submitted in several languages,
one of those shall be English, French or Spanish.
Tender documentation
This shall contain all information necessary to permit responsive
tenders, including information required to be published in the notice,
and:
(a) the address to which tenders should be sent;
(b) the address where requests for supplementary information should
be sent;
(c) the language or languages in which tenders and tendering
documents must be submitted;
(d) the closing date and time for receipt of tenders and the length
of time during which any tender should be open for acceptance;
(e) the persons authorized to be present at the opening of tenders
and the date, time and place of this opening;
(f) any economic and technical requirement, financial guarantees and
information or documents required from suppliers;
(g) a complete description of the products required or of any
requirements including technical specifications, conformity
certification to be fulfilled by the products, necessary plans,
drawings and instructional materials;
(h) the criteria for awarding the contract, including any factors
other than price that are to be considered in the evaluation of
tenders and the cost elements to be included in evaluating tender
prices; and
(i) the terms of payment.
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Entities shall forward the tender documentation at the request of any
supplier participating or requesting to participate and shall reply
promptly to any reasonable request for explanations relating thereto. Such
replies must not give that supplier an advantage over its competitors.
Submission of tenders
-
Tenders shall normally be submitted in writing directly or by
mail. If tenders by telex, telegram or telecopy are permitted, they
must include all the information necessary for the evaluation of the
tender, in particular the definitive price proposed and a statement
that the tenderer agrees to all the terms, conditions and provisions
of the invitation. The tender must be confirmed promptly by letter or
by a signed copy of the telex, telegram or telecopy. Tenders
presented by telephone shall not be permitted. Requests to
participate in selective tendering procedures may be submitted by
telex, telegram or telecopy.
The opportunities that may be given to tenderers to correct
unintentional errors shall not be permitted to give rise to any
discriminatory practice. A supplier shall not be penalized if a
tender is received after the time specified because of delay due
solely to mishandling on the part of the entity.
- Receipt and opening of tenders and awarding of contracts
Tenders shall be received and opened under procedures and
conditions guaranteeing the regularity of the openings as well as the
availability of information from the openings. There are procedures
laid down to this effect.
A tender must, at the time of opening, conform to the essential
requirements of the notices or tender documentation.
Unless in the public interest an entity decides not to issue the
contract, the entity shall make the award to the tenderer who has been
determined to be fully capable of undertaking the contract and whose
tender, whether for domestic or foreign products, is either the lowest
tender or the tender which in terms of the specific evaluation
criteria set forth in the notices or tender documentation is
determined to be the most advantageous. If it appears from evaluation
that no one tender is obviously the most advantageous in terms of the
specific evaluation criteria set forth, the entity shall, in any
subsequent negotiations, give equal consideration and treatment to all
tenders within the competitive range. Awards shall be made in
accordance with the criteria and essential requirements specified in
the tender documentation. Option clauses shall not be used in a
manner which circumvents the provisions of the Agreement.
Entities, except entities in developing countries, should
normally refrain from awarding contracts on the condition that the
supplier provide offset procurement opportunities or similar
conditions. Licensing of technology should not normally be used as a
condition of award. This provision does not apply to developing
countries.
1989