(a) treat a locally established supplier less favourably than another locally established supplier on the basis of the degree of foreign affiliation to, or ownership by a person of, the other Party; or
(b) discriminate against a locally established supplier on the basis that the goods or services offered by that supplier are goods or services of the other Party.
3. A Party, including its entities, shall not seek, take account of, impose or enforce offsets at any stage of a procurement.
4. This Article shall not apply to measures concerning customs duties and charges of any kind imposed on or in connection with importation, the method of levying such customs duties and charges, other import regulations, or to measures affecting trade in services other than government procurement measures specifically governing procurement covered by this Chapter.
Article 6
1. The Parties, their entities and review authorities shall not, except to the extent required by law, disclose confidential information that would prejudice legitimate commercial interests of a particular supplier or that might prejudice fair competition between suppliers without the written authorisation of the supplier that provided the information.
2. Nothing in this Chapter shall be construed as requiring either Party, its entities or review authorities to disclose confidential information the disclosure of which would impede law enforcement or otherwise be contrary to the public interest or privacy legislation.
Article 8
Publication of Information on Procurement
Each Party shall promptly publish in electronic form as set out in Annex 3:III (Single Electronic Point of Access):
(a) its laws, regulations, procedures, and administrative guidance relating to government procurement covered by this Chapter; and
(b) any modifications where possible in the same manner as the original publication.
Article 9
Procurement Procedures
Except as provided for in Article 15, entities shall award contracts by means of open or selective tendering procedures, in the course of which all interested suppliers or, in the case of selective tendering, suppliers invited to do so by an entity may submit a tender.
Article 10
Notice of Intended Procurement
1. Except as provided for in Article 15, for each procurement covered by this Chapter, entities shall publish in advance a notice of intended procurement inviting interested suppliers to submit a tender or apply to meet conditions for participation in the procurement.
2. The notice of intended procurement shall be published through means that are widely disseminated and afford non-discriminatory access to interested suppliers. Such notices shall remain readily accessible, through a single electronic point of access specified in Annex 3:III (Single Electronic Point of Access), free of charge for the entire period established for tendering.
3. Each notice of intended procurement shall include:
(a) a description of the intended procurement;
(b) a summary of any conditions that suppliers must fulfil to participate in the procurement;
(c) the time limits for submission of tenders or applications to participate; and
(d) contact details for obtaining all relevant documents.
4. Each notice of intended procurement shall be published sufficiently in advance to provide interested suppliers with a reasonable period of time, in light of the nature, circumstances and complexity of the procurement, to obtain the full tender documentation and to prepare and submit responsive tenders by the closing date, or to apply for participation in the procurement where applicable.
5. The Parties agree that entities shall in no case provide less than 10 days between the date on which the notice of intended procurement is published and the final date for the submission of tenders or applications to participate.
Article 11
Conditions for Participation
1. Where an entity requires suppliers to register, qualify, or satisfy any other conditions before being permitted to participate in a procurement, each Party shall ensure that a notice is published inviting suppliers to apply for registration or qualification or to demonstrate satisfaction of other conditions for participation.
2. The notice shall be published sufficiently in advance for interested suppliers to prepare and submit responsive applications and for the entity to evaluate and make its determinations based on such applications.
3. Any conditions for participation in the procurement, including the legal, commercial, technical and financial capacity of suppliers, as well as the verification of qualifications, shall be limited to those which are
essential to ensure the supplier’s capability to fulfil the contract in question.
4. The commercial, technical and financial capacity of a supplier shall be evaluated on the basis of the supplier’s global business activity.
5. Entities shall consider for a particular procurement those suppliers of the other Party that request to participate in the procurement and that are not yet registered or qualified, provided there is sufficient time to complete the registration or qualification procedures within the time period allowed for the submission of tenders.
6. Nothing in this Article shall preclude an entity from excluding a supplier from a procurement on grounds such as:
(a) bankruptcy, liquidation or insolvency;
(b) false declarations relating to a procurement;
(c) significant deficiency in the performance of any obligation under a prior contract;
(d) final judgments in respect of serious crimes or other serious offences;
(e) professional misconduct or acts or omissions that adversely reflect on the commercial integrity of the supplier; or
(f) failure to pay taxes.
Article 12
Lists of Registered or Qualified Suppliers
1. Entities may establish for continuing use a list of suppliers registered or qualified to participate in procurements.
2. Entities shall publish annually or otherwise make available continuously in electronic form a notice inviting interested suppliers to apply for inclusion on the list. Where a list will be valid for three years or less, an entity may publish this notice only once, at the beginning of the period of validity of the list, provided that the notice:
(a) states the period of validity and that further notices will not be published; and
(b) is published by electronic means and is made available continuously during the period of its validity.
3. The notice shall include:
(a) a description of the goods and services for which the list may be used; and
(b) a summary of the conditions to be satisfied by suppliers for inclusion on the list.
4. Entities shall ensure that suppliers may apply for participation in the list at any time, and that all qualifying suppliers are included within a reasonable period, taking into account the conditions for participation and the need for verification.
5. Where entities require suppliers to qualify for such a list before being permitted to participate in a procurement, and a supplier that has not previously satisfied such requirements or conditions submits an application, the entity shall promptly start the registration or qualification process. The entity shall allow such supplier to participate in the procurement, provided there is sufficient time to complete the registration or procurement procedures within the time period allowed for the submission of tenders.
6. Entities shall notify qualified suppliers of the termination of or their removal from a list and, on request of a supplier, provide the supplier with written reasons for this action within a reasonable time.
Article 13
Technical Specifications
1. Each Party shall ensure that its entities do not prepare, adopt or apply any technical specification with the purpose or the effect of creating unnecessary obstacles to trade between the Parties.
2. Any technical specifications prescribed by an entity shall, where appropriate:
(a) be specified in terms of performance and functional requirements, rather than design or descriptive characteristics; and
(b) be based on international standards, where applicable, or otherwise on domestic technical regulations, recognised domestic standards, or building codes.
3. Each Party shall ensure that its entities do not prescribe technical specifications that require or refer to a particular trademark or trade name, patent, design or type, specific origin or producer or supplier, unless there is no sufficiently precise or intelligible way of otherwise describing the procurement requirements and provided that, in such cases, words such as “or equivalent” are included in the tender documentation.
4. Each Party shall ensure that its entities do not seek or accept, in a manner that would have the effect of prejudicing fair competition, advice to be used in the preparation or adoption of any technical specification for a specific procurement from a person that may have a commercial interest in that procurement.
Article 14
Tender Documentation
1. Tender documentation provided to suppliers shall contain all information necessary to enable them to prepare and submit responsive tenders, including the essential requirements and evaluation criteria for the award of the procurement contract.
2. Where entities do not offer direct access to the tender documentation by electronic means, entities shall promptly make available the tender documentation at the request of any interested or, as applicable, qualified supplier.
3. Entities shall endeavour to reply promptly to any reasonable request for relevant information or explanation made by a supplier, provided that such information does not give that supplier an advantage over other
suppliers. The information or explanation given to a supplier may be provided to all participating suppliers known to the entity, in which case it shall be provided promptly.
4. Where prior to the award of a contract, an entity modifies the tender documentation, and that modification could impact on the preparation of tenders, it shall publish or transmit all such modifications in writing:
(a) to all suppliers who have requested tender documentation at the time the criteria are modified, where such suppliers are known to the entity, and in all other cases in the same manner as the original information was transmitted by the entity; and
(b) in adequate time to allow such suppliers to modify and resubmit their tenders, as appropriate.
Article 15
Exceptions to Open or Selective Tendering
1. Provided that the tendering procedure is not used to avoid competition or to protect domestic suppliers, entities may award contracts by means other than open or selective tendering procedures in any of the following circumstances:
(a) where:
(i) no tenders were submitted or no suppliers requested participation;
(ii) no tenders that conform to the essential requirements of the tender 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 due to an absence of competition for technical reasons;
(c) for additional deliveries by the original supplier of goods or services 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 existing equipment, software, services or installations procured under the initial procurement; and
(ii) would cause significant inconvenience or substantial duplication 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 tendering 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 particular contract for research, experiment, study or original development. Original development of a first good or service may include limited production or supply in order to incorporate the results of field testing and to demonstrate that the good or service is suitable for production or supply 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. The Parties shall ensure that where entities resort to a procedure other than open or selective tendering based on the circumstances set forth in paragraph 1, the entities shall maintain a written record or report setting out the circumstances and specific justifications for resorting to a procedure other than open or selective tendering.
Article 16
Awarding of Contracts
1. The Parties shall ensure that their entities receive, open and evaluate all tenders under procedures that guarantee the fairness and impartiality of the procurement process.
2. To be considered for award of a contract, a tender must, at the time of opening by the entity, conform to the essential requirements of the notice of intended procurement or tender documentation and be submitted by a supplier who complies with the conditions for participation.
3. Unless an entity determines that it is not in the public interest to award a contract, it shall award the contract to the supplier that has been determined to be fully capable of undertaking the contract and has submitted the tender that:
(a) offers the best value for money;
(b) offers the lowest price; or
(c) is the most advantageous in terms of the essential requirements and evaluation criteria set forth in the tender documentation.
4. An entity shall not cancel a procurement covered by this Chapter, or terminate or modify awarded contracts, in order to circumvent the requirements of this Chapter.
Article 17
Post-Award Information
1. Entities shall promptly inform suppliers that have submitted a tender of the contract award decision.
2. Entities shall, on request from an unsuccessful supplier, promptly explain the reasons for the rejection of its tender or the relative advantages of the tender the entity selected.
3. Entities shall, promptly after the award of a contract for a procurement covered by this Chapter, publish a notice containing at least the following information:
(a) the name and address of the successful supplier;
(b) a description of the goods or services supplied; and
(c) the value of the contract award.
Article 18
Ensuring Integrity in Procurement Practices
Each Party shall ensure that criminal or administrative penalties exist to address corruption in its government procurement, and that its entities have in place policies and procedures to address any potential conflict of interest on the part of those engaged in or having influence over a procurement.
Article 19
Domestic Review of Supplier Complaints
1. Each Party shall ensure that its entities accord impartial and timely consideration to any complaints from suppliers regarding an alleged breach of measures or government procurement measures implementing this Chapter arising in the context of a procurement in which those suppliers have, or have had, an interest. Where appropriate, a Party may encourage suppliers to seek clarification from its entities with a view to facilitating the resolution of any such complaints.
2. Each Party shall provide suppliers of the other Party with non- discriminatory, timely, transparent and effective access to an administrative or judicial body competent to hear or review complaints of alleged breaches of the procuring Party’s measures or government procurement measures implementing this Chapter arising in the context of procurements in which those suppliers have, or have had, an interest.
3. Each Party shall make information on complaint mechanisms generally available.
4. Where an administrative or judicial body may award compensation for any breach of measures or government procurement measures implementing this Chapter, such compensation may be limited to the costs for tender preparation reasonably incurred by the supplier for the purpose of the procurement.
Article 20
Electronic Communications and Contact Points
1. The Parties shall encourage their entities to provide opportunities for government procurement to be undertaken through the internet and shall encourage, to the extent possible, the use of electronic means for the provision of tender documentation and receipt of tenders.
2. The contact point or points from whom suppliers can obtain information on government procurement shall either be specified in Annex 3:IV (Contact Points), or be set out in the information on the single electronic point of access.
3. Each Party shall encourage its entities to publish on the internet information regarding the entities’ indicative procurement plans as early as possible in the fiscal year.
Article 21
Modifications and Rectifications of Annexes
1. Each Party may modify its Annexes to this Chapter in conformity with the provisions of paragraph 2(c) of Article 2 (Functions of the Joint Commission) of Chapter 22 (Institutional Provisions) provided that it:
(a) notifies the other Party of the proposed modification; and
(b) provides the other Party appropriate compensatory adjustments to its coverage in order to maintain a level of coverage comparable to that existing prior to the modification.
2. Notwithstanding paragraph 1(b), no compensatory adjustments shall be provided to the other Party where the modification by a Party of its Annexes to this Chapter concerns:
(a) rectifications of a purely formal nature and minor amendments to entity coverage and/or the single electronic point of access and/or contact points, made through an implementing arrangement in accordance with paragraph 2(b) of Article 2 (Functions of the Joint Commission) of Chapter 22 (Institutional Provisions); or
(b) one or more entities over which a Party’s control or influence has been effectively eliminated as a result of corporatisation and commercialisation or privatisation.
Article 22