Agreement On Government Procurement (GPA)

What is GPA procurement?

The GPA – Government Procurement Agreement is a plurilateral agreement concluded within the framework of the World Trade Organization (WTO) that regulates access to public procurement markets among the participating States.

The main objective of the GPA is to ensure openness, transparency, and non-discrimination in public procurement procedures, allowing companies from a signatory State to participate in public tenders of other GPA parties under the same conditions granted to domestic companies.

What countries are part of the GPA procurement? H2

EU Member States have acceded to the WTO Agreement on Government Procurement (GPA), which is the main international agreement governing public procurement. It is a plurilateral agreement, as not all WTO members have joined it.

The other 19 GPA Parties are:
Armenia, Australia, Canada, Chinese Taipei, Hong Kong (China), Iceland, Israel, Japan, Liechtenstein, Montenegro, Moldova, the Netherlands with regard to Aruba, Norway, New Zealand, South Korea, Singapore, Switzerland, Ukraine, and the United States.

Companies from these countries enjoy preferential access rights to EU public procurement, in accordance with the conditions set out in the Agreement.

Other WTO members are currently negotiating their accession to the GPA.

What is the purpose of the agreement on government procurement?

The GPA represents an essential legal instrument for:

1. opening public procurement markets to international competition;
2. reducing protectionist practices in public purchasing;
3. ensuring equal treatment between domestic and foreign companies;
4. promoting transparency in tender procedures.

In the absence of the GPA, access of foreign companies to public procurement may be restricted or excluded, particularly for companies from non-EU Countries.

Participation of third-country participation in EU procurement

For many foreign companies, one of the most relevant aspects of public procurement in Italy concerns the possibility of participating in tender procedures without having a registered office, branch, or permanent establishment in Italy.

In general, it is not required to open an office in Italy in order to participate in a tender, although specific obligations may arise at the contract performance stage.

One of the tools most commonly used by foreign companies is participation through temporary groupings of companies (RTI) or consortia.

Through an RTI:

1. the foreign company may associate with one or more Italian or European companies;
2. the participation requirements may be shared among the members of the grouping;
3. it is possible to combine technical expertise, financial capacity, and knowledge of the local market.

Consortia, on the other hand, allow for a more structured and ongoing form of participation, which is particularly useful for contracts of greater complexity or duration.

Another widely used instrument is reliance contract.

Reliance is a key legal mechanism for foreign companies that do not independently meet all the requirements set out in the tender notice.

Through reliance:

1. the foreign company may "use" the technical, economic, or professional requirements of another company (Italian or EU-based);
2. a reliance agreement compliant with Italian law is required;
3. the auxiliary company assumes specific responsibilities toward the contracting authority.

In addition, foreign companies may enter into joint ventures and partnerships with Italian companies.

A strategic alternative to occasional participation is the creation of a joint venture or a stable partnership with Italian companies. This solution makes it possible to:

1. share risks and investments;
2. facilitate the management of relationships with the Public Administration;
3. benefit from local expertise in public procurement, subcontracting, and regulatory compliance.

Joint ventures may be established either in contractual form or as corporate entities, depending on the needs of the project.

A recent judgment on reliance contract

In a recent judgment (No. 3721/2025), the Italian Council of State addressed a delicate issue of administrative and EU law concerning participation in public tender procedures by economic operators established in third countries that are not signatories to the Agreement on Government Procurement (GPA), with particular focus on reliance (avvalimento) involving non-EU entities.

The Council of State held that any prohibition on the participation of companies from third countries must be expressly provided for in the tender documents and cannot automatically derive from an alleged interpretation of the law based on Article 69 of the Public Procurement Code.

In the decision under review, the Council of State ruled that the exclusion of the claimant—based on its reliance on a Chinese company—occurred in the absence of a valid provision in the tender notice and in violation of the principle of exhaustiveness of grounds for exclusion (Article 10 of Legislative Decree No. 36/2023).

In essence, the Court clarified that, in the absence of an EU act or an explicit clause in the tender rules, access to public procurement procedures by companies from third countries that are not signatories to the GPA is not prohibited ex lege, but may only be limited on a discretionary basis.

The decision refers to the most recent case law of the Court of Justice of the European Union and sets out the following principles:

• only the European Union may establish a general prohibition on participation for economic operators from countries that are not signatories to the GPA;
• in the absence of such EU-level rules, contracting authorities may exclude such operators only if this is clearly stated in the tender documents;
• failure to comply with the principles of legal certainty, transparency, and legitimate expectations renders unlawful any exclusions based on subsequent or ambiguous grounds.

Arnone&Sicomo International Law Firm: How can help you

Navigating public procurement in Italy can be highly complex, especially for foreign companies seeking to access the Italian and EU public contracts market. Legal, administrative, and procedural requirements, together with strict compliance rules under the Italian Public Procurement Code, make professional legal assistance essential.

Arnone & Sicomo International Law Firm, based in Italy, provides specialized legal advice on public procurement in Italy, assisting EU and non-EU companies at every stage of the tender process. Our team supports foreign businesses in participating in Italian public tenders, ensuring full compliance with ANAC requirements, tender documentation, and e-procurement platforms such as MEPA and regional procurement portals.

We advise on strategic market access solutions, including RTI and consortia, avvalimento (reliance on third-party requirements), joint ventures, and partnerships with Italian companies, enabling foreign operators to meet participation requirements even without being established in Italy. We also represent clients in disputes, exclusions from tender procedures, and litigation before Italian administrative courts.

Choosing a law firm specialized in public procurement law in Italy is a decisive factor for success. With a strong international focus and in-depth knowledge of Italian and EU procurement law, Arnone & Sicomo helps foreign companies minimize legal risks, increase competitiveness, and maximize their chances of winning public contracts in Italy.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.