《政府采购协定》适用范围的最新修订及其影响

The Latest Revision of the Scope and Coverage of Government Purchase Agreement and Its Implications

《政府采购协定》的适用范围规定对于确定其对各参加方的涵盖范围以及确保《协定》的实施至关重要。2012年《修订文本》不仅从形式上整合重排了原《协定》的适用范围规定,使相关条款之间的内在逻辑更为合理,还对适用范围条款的实质内容作了多方改进。具体改进包括新增"涵盖采购"及其他定义、完善附录一清单并明确《协定》适用于电子采购、明确规定不适用《协定》的五种具体情形,以及多方改进关于更改《协定》涵盖范围的规定。随着《协定》适用范围修订完成,现有《协定》参加方扩展了其附录一清单。这将增大中国扩展《协定》出价特别是将更多国有企业纳入出价清单的压力,需要积极加以应对。

The provisions of Government Purchase Agreement （GPA） on scope and coverage are crucial to defining GPA＇ s coverage with respect to its Parties and to ensuring its enforcement. The revised GPA not only integrates and rearranges those provisions on GPA＇ s scope and coverage contained in the 1994 Agreement, thereby making the internal logic of these provisions more reasonable and the GPA coverage as a whole easier to understand, but also im- proves the substantive content of these provisions. The concrete improvements include： adding a new definition of ＂covered procurement＂ and other definitions to the Agreement; improving an- nexes to Appendix I and clearly stating that the GPA applies to covered procurement conducted by electronic means; making clear the circumstances to which the GPA do not apply; and mak- ing substantial amendments to the GPA provision on modifications and rectifications of cover- age. These revisions can benefit the enforcement of the GPA; however, ambiguities and loop- holes existing in the revision can result in the reduction of the GPA coverage. With the revision of the GPA scope and coverage, GPA parties have expanded the scope of their Appendix I lists, which brings more pressure on China to further improve its Appendix I offer for joining the GPA, especially to expand the scope of state-owned enterprises （SOEs） subject to the GPA. It is suggested that China should deal with this issue by interpreting and applying revisions to the GPA coverage, especially utilizing the ambiguities and loopholes in these provisions to its own advantage, and by making general arrangements for informing SOEs in China about these revi- sions, and for learning to apply GPA provisions on modifications and rectifications of coverage.