9. An entity shall indicate in the notice referred to in this article that the procurement is covered by this chapter.
Article 15-12. Selective Tendering Procedures
1. Selective tendering procedures in the entity shall publish an invitation to participate in accordance with article 15-11.
2. To ensure optimum effective competition among suppliers of the Parties in selective tendering procedures, an entity may invite directly, for each procurement, the maximum number of domestic suppliers and suppliers of the other Party that is compatible with the efficient operation of the procurement system.
3. An entity may limit, in accordance with objective criteria and fully justified reasons, the number of tenders to assess when the analysis of all tenders received might materially affect the efficient operation of the procurement system, provided that it is ensured to suppliers of the other party compliance with article 15-04.
4. Pursuant to the provisions of paragraphs 1 and 5, an entity that maintains a permanent list of qualified suppliers may select which shall be convened purchase directly to tender in a given. in the selection process, the Entity shall provide equitable opportunities for suppliers on the list.
5. In accordance with subparagraphs (f) and (h) of paragraph 2 of article 15-10, an entity shall allow a supplier that requests to participate in a particular purchase, submit a tender and shall take into account. the number of suppliers that will be permitted to participate only limited additional by reason of the efficient operation of the procurement system.
6. Where an entity does not favour or in the invitation to a supplier, at his request, promptly provide pertinent information concerning its reasons for action.
Article 15-13. Time Limits for Tendering and Delivery
1. An entity shall:
a) To establish a deadline, suppliers of another party to provide sufficient time to prepare and submit tenders before the closing of the tendering procedures;
b) To establish a deadline, consistent with its own reasonable needs, shall take into account such factors as the complexity of the procurement; the extent of subcontracting anticipated and the period of time normally required for transmitting tenders by mail from foreign as well as within the national territory; and
c) In establishing the final date for receipt of tenders or of requests for admission to the tender, deemed appropriate to publication delays.
2. An entity shall provide that:
a) In open tendering procedures, the deadline for receipt of tenders is no less than 40 days from the date of publication of a notice in accordance with article 15-11;
b) In selective tendering procedures not involving the use of a permanent list of qualified suppliers, the time limit for the submission of an application for admission to the tender is not less than 25 days from the date of publication of a notice in accordance with article 15-11, and the period for receipt of tenders is no less than 40 days from the date of publication of a notice; and
c) In selective tendering procedures involving the use of a permanent list of qualified suppliers, the deadline for receipt of tenders is no less than 40 days from the date of the first invitation to tender, when the latter do not coincide with the date of publication of a notice referred to in article 15-11, not less than 40 days must elapse between the publication and receipt of tenders.
3. An entity may reduce the time limits specified in paragraph 2 in accordance with the following:
a) As provided for in paragraph 4 or 6 of Article 15-11, when it has issued a call within a period of no less than 40 days and not more than 12 months the 40-day limit for receipt of tenders may be reduced to no less than 24 days;
b) In the case of second or subsequent publication of a publication on successive contracts of the same type, pursuant to subparagraph (a) of paragraph 2 of article 15-11, the 40-day limit for receipt of tenders may be reduced to no less than 24 days;
c) Where, for reasons of urgency and duly justified the entity that has not been anticipated, cannot be deadlines, they shall in no case less than ten days from the date of publication of a notice in accordance with article 15-11; or
d) Where one of the entities listed in annex 2 or 3 of Article 15-02 used an invitation to participate as a notice referred to in paragraph 6 of Article 15-11 the selected entity and suppliers may determine by common agreement the deadlines; however, in the absence of agreement, the entity may fix periods wide enough to permit the submission of tenders, which in no case shall be less than 10 days.
4. In establishing the date of delivery of the goods or services, according to their needs and reasonable, an entity shall take into account such factors as the complexity of the procurement; the extent of subcontracting and the anticipated time realistically deemed necessary for the production, processing and transport of goods from the different locations of supply.
Article 15-14. Bidding Conditions
1. Where entities provide databases to suppliers tender documentation shall contain all information necessary to permit them to present its submissions, including the information to be published in the notice referred to in paragraph 2 of article 15-11 except the information required under subparagraph (h) of paragraph 2 of article 15-11. the documentation shall also include:
a) The address of the entity to be sent tenders;
b) The address to which they must be sent requests for additional information;
c) The date and time of the closure of the receipt of tenders and the period during which shall be validated;
d) The authorized persons, in addition to participating suppliers to attend the opening of tenders and the time and place for the opening of the tenders.
e) A description of any condition of any economic or technical and financial guarantee, information and documents required from suppliers;
f) A complete description of the goods or services to be procured and any other requirements, including technical specifications, certificates of conformity and levels, designs and instructions necessary;
g) The criteria which will inform the award of the contract, such as the price, and any other factor to be considered in the evaluation of tenders; the cost elements to be taken into account when assessing the prices of tenders shall include, in areas such as transport, insurance and inspection and, in the case of goods or services of the other party, customs duties and other import taxes and charges the currency of payment;
h) The terms of payment; and
i) Any other terms or conditions.
2. An entity shall:
a) Provide the basis for tendering upon request by a supplier participating in open tendering procedures or requests to participate in selective tendering procedures, and reply promptly to any reasonable request for clarification of the same; and
b) Reply promptly to any reasonable request for relevant information by a supplier participating in the tendering, on condition that such information does not give that supplier an advantage over its competitors in the procedure for the award of the contract.
Article 15-15. Submission, Receipt and Opening of Tenders and Awarding of Contracts
1. The Entity shall use the procedures for submission, receipt and opening of tenders and the awarding of contracts that are consistent with the following:
a) Normally, tenders shall be submitted in writing, directly or by mail;
b) Where the invitation to participate shall accept offers sent by telegram, telex, telefacsímil or other means of electronic transmission, the tender shall include all the information necessary for its evaluation, in particular the final price proposed by the supplier and a statement that the supplier accepts all the terms and conditions of the notice;
c) The tenders submitted by telegram, telex or telefacsímil or other means of electronic transmission must be confirmed within the period specified in the notice or the tender, sending the original document of tenders or signed copy of telefacsímil, telegram, telex or electronic message;
d) The content of the telegram, telex, electronic message or telefacsímil shall prevail in the event of any inconsistency between this difference or any other documentation and received after the deadline for receipt of tenders has expired;
e) It shall not be permitted to submit tenders by telephone;
f) Applications to participate in selective tendering may be sent by telegram, telex, telefacsímil and, when permitted by other means of electronic transmission; and
g) The opportunity to correct unintentional errors of form, such as arithmetical errors or other which do not affect the substance of the tender, provided to suppliers during the period between the opening of tenders and the awarding of the contract shall not be used in a manner that discriminate between suppliers.
For purposes of this paragraph, shall mean those electronic transmission means through which the recipient may deliver a copy of the tender at the place of destination of the transmission.
2. No entity subject to a supplier on grounds attributable exclusively to the entity.
3. All solicited tenders by an entity in the open or selective tendering procedures shall be received and opened under conditions and procedures guaranteeing the regularity of the opening of the tenders. the Entity shall retain the information for the opening of tenders. the information shall remain available to participants to legitimate interest and the competent authorities of the Party to be used as required under article 15-17 or 15-19 or Chapter XX (dispute settlement).
4. An entity shall award contracts in accordance with the following:
a) For tenders may be considered in the awarding, shall meet at the time of opening, with the requirements set out in the notice or the tender and the suppliers that satisfy the conditions for participation;
b) If the entity has received a tender abnormally lower than the prices in other submitted, the entity may enquire with the supplier to ensure that it satisfies the conditions for participation and is or will be capable of fulfilling the terms of the contract;
c) Unless, for reasons of public interest, the entity decides not to award the contract to be awarded to the supplier that has considered capable of performing the contract and whose tender is either the lowest price or the most advantageous in accordance with the evaluation criteria set out in the notice or in the invitation to tender;
d) The award shall be made in accordance with the criteria and requirements set out in the tender; and
e) They shall not be used clauses allowing the listing of alternative or substitute goods or services to circumvent this chapter.
5. No entity of a Party may make the award of a contract that the supplier has previously been allocated one or more contracts by an entity of that Party or that the supplier prior work experience in the territory of that Party.
6. An entity shall:
a) At the express request, shall promptly inform participating suppliers of decisions on contract awards and, on request, to do so in writing; and
b) At the request of a supplier was not selected, whose tender shall supply relevant information to that supplier concerning the reasons why its tender was not selected, the characteristics and relative advantages of the tender selected and the name of the winning supplier.
7. Within a reasonable time after the award of the contract, an entity inserted a notice in the appropriate publication referred to in annex 1 to article 15-19 containing the following information:
a) A description of the nature and quantity of the goods or services covered by the contract;
b) The name and address of the entity awarding the contract;
c) The date of the award;
d) The name and address of each supplier selected;
e) The value of the contract; and
f) The tendering procedure used.
8. Notwithstanding paragraphs 1 to 7, an entity may withhold certain information on the contract award where release:
a) Would impede law enforcement or would be contrary to the public interest;
b) Violated the legitimate commercial interests of a particular person; or
c) Would prejudice fair competition between suppliers.
In any case, subparagraphs (b) and (c) shall prevail when seeking information on matters of public interest.
Article 15-16. Limited Tendering
1. An entity may, under the conditions and in accordance with the conditions described in paragraph 2, use limited tendering procedures and thus to derogate from articles 15-10 15-15, provided that they are not limited tendering procedures to avoid maximum possible competition or in a manner that would constitute a means of discrimination between suppliers of the other party or protection to domestic suppliers.
2. An entity may use limited tendering procedure in the following circumstances and subject to the following conditions, as appropriate:
a) In the absence of tenders in response to an open tender or selective tendering; or where the tenders submitted have resulted from collusion; does not conform to the essential requirements of the tender; or where the tenders have been made by a supplier that satisfies the conditions for participation provided for in accordance with this chapter, provided that the requirements of the initial procurement are not substantially modified in the contract award;
b) Where the goods or services can be supplied only by a particular supplier without other reasonable alternative or substitute exists; for works of art; for reasons connected with the protection of patents, copyrights or other exclusive rights; privileged information; or has not competition for technical reasons;
c) So far as is where strictly necessary for reasons of extreme urgency due to the entity unforeseeable events, is not possible to obtain the goods or services to time by means of open or selective tendering procedures;
d) For additional deliveries by either the original supplier as spare parts for existing continuing services or installations, materials or services, or expansion of existing facilities or services, materials, where a change of supplier would compel the Entity to procure equipment or services shall not conform to the requirements of interchangeability with already existing equipment or services, including software, insofar as the initial procurement of it has been covered by this chapter;
e) Where an entity acquiring prototypes or a good first manufactured or first provide a service at its request in the course of a particular contract research, experiment, study or original manufacture. once they have been fulfilled such contracts, the purchase of goods or services which are performed as a result of them shall comply with the articles 15-15 15-10. original development of a good first may include limited production in quantity to take into account the results of the tests in practice and to demonstrate that the product was provided to the serial production meet acceptable standards of quality, but does not include the production in order to establish commercial viability or to recover research and development costs;
f) For goods purchased on a market commodity price is listed in an international market;
g) For purchases made exceptionally under advantageous conditions that only a very short term, but does not include conditions routine purchases from regular suppliers. by exceptionally favourable conditions, are those which are substantially advantageous for the buyer entity under normal market conditions, such as unusual disposals by enterprises which are not normally suppliers; or disposal of assets in liquidation or of persons under judicial administration;
h) For contracts to be awarded to the winner of a contest architectural design, provided that the contest is:
i) Organized in accordance with the principles of this chapter, including in relation to publication of an invitation to the qualified suppliers to participate in procurement;
ii) Organized in such a way that the design contract is awarded to the winner; and
iii) Subject to an independent jury; and
i) Where an entity requires consulting services regarding matters of a confidential nature, the disclosure of which could reasonably be expected to compromise confidential information in the public sector, causing serious economic or similarly be contrary to the public interest.
3. Entities shall explain the reasons justifying the use of limited tendering and prepare a report in writing on each contract awarded under paragraph have
2. Each report shall contain the name of the procuring entity; the value and kind of goods or services procured; the country of origin and a statement of the circumstances and conditions described in paragraph 2 that justified the use of limited tendering. the Entity shall retain a file in each report will complete documentation on the contract. they shall be available to the competent authorities of the Party for use as required under article 15-17 or 15-19 or with chapter XX (dispute settlement).
Section D. Avoidance Proceedings
Article 15-17. Avoidance Proceedings
1. With the objective of promoting fair procurement procedures, open and fair, each Party shall adopt or maintain procedures avoidance through administrative channels for procurement covered by this chapter in accordance with the following:
a) Each Party shall establish a procedure for suppliers to challenge the various aspects of the procurement process, for the purposes of this article, begins after an entity has defined its requirement and continues until the award of the contract;
b) Before initiating the procedure for a disputing party shall encourage the supplier to the contracting entity to seek a solution to the complaint;
c) Each Party shall ensure that its entities impartial and timely consideration to any complaints or disputes regarding procurement covered by this chapter;
d) Regardless of whether a supplier has or has not attempted to resolve its complaint with the entity or having reached a successful resolution, no party shall prevent the supplier that initiates the procedure to challenge or seek a remedy available;
e) A Party may request that a supplier to the entity notifies the commencement of avoidance proceedings;
f) A Party may limit the time limit within which a supplier may initiate the avoidance proceedings 1, this period but shall in no case be less than ten days from the time when the supplier is considered knew or ought to have known as the basis of the complaint;
g) Each Party shall establish or designate an authority review without specialized substantial interest in the outcome of the procurement to receive complaints and issuing resolutions and, where appropriate, the relevant recommendations;
h) On receipt of an objection, the reviewing authority shall investigate expeditiously;
i) The review authority shall limit its considerations to the challenge;
j) The review authority shall issue a decision to settle the dispute, which may include directives for the Entity to evaluate new account tenders may terminate the procurement process, the contract or subjected to competition;
k) Generally, entities shall follow the recommendations of the review authority;
l) Upon the termination of the proceeding, each Party shall grant its review authority to submit further written recommendations to an entity, on any stage of a procurement process that has been found to be problematic during the investigation of the disputing, including recommendations for changes in the procurement procedures of the entity to which are consistent with this chapter;
m) The review authority in a timely manner and shall notify in writing the outcome of its investigations, decisions and recommendations on any challenge, and make them available to the Parties and interested persons;
n) Each Party shall be in writing and made generally available to all their avoidance proceedings; and
o) In order to ensure that the procurement was conducted in accordance with this Chapter, each Party shall ensure that its entities maintain complete documentation relating to each purchase, including a written record of all communications substantially affect the procurement process for a period of at least three years from the date on which the contract was awarded.
2. A Party may request the commencement of avoidance proceedings only after the notice is published or, if not issued after databases available tender. where a party establishes that requirement, within 10 working days referred to in subparagraph (f) of paragraph 1, shall begin no earlier than the date that the notice is published or made available the tender.
Section E. General Provisions
Article 15-18. Exceptions
1. Nothing in this chapter shall be construed as preventing a party from taking any action or not disclosing any information which it considers necessary to protect its essential security interests relating to the procurement of arms, munitions or war materials or any other procurement indispensable for national security or for national defence purposes.
2. Provided that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between the parties where the same conditions prevail or a disguised restriction on trade between the parties nothing in this chapter shall be construed to prevent a Party from adopting or maintaining measures:
a) Necessary to protect public morals, public order or security;
b) Necessary to protect human life and health, animal or plant;
c) Necessary to protect intellectual property; or
d) Relating to goods or services provided by charitable institutions, disabled or of prison labour.
Article 15-19. Provision of Information
1. Pursuant to Article 18-02, each Party shall promptly publish any laws, regulations, jurisprudence, administrative rulings of general application and any procedures, including model contract clauses, relating to government procurement covered by this Chapter, by inserting them in the relevant publications referred to in Annex 2 to this Article.
2. Each Party shall:
a) It shall explain to the other Party upon its request for public procurement procedures;
b) It shall ensure that its entities, on request of a supplier promptly explain their practices and procedures of public procurement; and
c) Designate by31 upon the Entry into Force of this Treaty, one or more centres for information:
i) To facilitate communication between the parties; and
ii) Upon request, all reasonable answer enquiries from the other party to provide relevant information on matters covered by this chapter.
3. A Party may request additional information on the contract award as may be necessary to determine whether a procurement was conducted in accordance with the provisions of this chapter in respect of tenders that have not been selected. for this purpose, the buyer entity will provide information on the characteristics and relative advantages of the winning tender and the contract price. where release of this information would prejudice future solicitations, competition in the requesting party shall not disclose information except after consultation with the other party and after obtaining the consent.
4. Each Party shall provide to the other Party upon request information available to that party and its entities concerning covered procurement of its entities and the individual contracts awarded by its entities.
5. No party may disclose confidential information the disclosure of which would prejudice the legitimate commercial interests of a particular person or might prejudice fair competition between suppliers without formal authorization of the person that the information provided to the party.
6. With a view to ensuring effective monitoring of procurement covered by this chapter Each Party shall provide to collect statistics and the other party, unless the parties agree otherwise an annual report in accordance with the following requirements:
a) Statistics on the estimated value of contracts awarded, both as lower than the value of the applicable thresholds, broken down by entities;
b) Statistics on the number and total value of contracts above the value of the applicable thresholds, broken down by entities, by categories of goods and services established in accordance with the classification systems developed pursuant to this chapter and by country of origin of the goods and services procured;
c) Statistics on the number and total value of contracts awarded pursuant to article 15-16, broken down by entities, by category of goods or services, and by country of origin of the goods and services procured; and
d) Statistics on the number and total value of contracts awarded pursuant to derogations from this chapter set out in the annex to article 9 15-02 broken down by entities.
7. Each Party may organize by state and municipality or region any portion of the report referred to in paragraph 6 which corresponds to entities listed in annex 3 to article 15-02.
Article 15-20. Technical Cooperation
1. The Parties shall cooperate on mutually agreed terms, in order to achieve a better understanding of their government procurement systems with a view to achieving greater access to opportunities in government procurement for their suppliers.
2. Each Party shall provide to the other party and their suppliers, information concerning training and orientation programs regarding its government procurement systems and non-discriminatory access to any programme made on the basis of cost recovery.
3. The training and orientation programs referred to in paragraph 2 shall include:
a) Training of public sector personnel directly involved in government procurement procedures;
b) Training of interested suppliers of opportunities in government procurement;
c) The explanation and description of specific aspects of the system of government procurement of each party, such as its rebuttal mechanism; and
d) Information relating to market opportunities for public procurement.
4. Each Party shall establish by the date of entry into force of the Treaty at least one contact point to provide information on the training and orientation programs referred to in this article.
Article 15-21. Joint Programmes for Micro, Small and Medium-sized Industry
1. The Parties shall, upon the Entry into Force of this Treaty, the Committee of micro, small and medium industry, comprising representatives of each party. the Committee shall meet upon agreement of the Parties, at least once a year and shall report annually to the Commission on the efforts of the Parties to promote public procurement opportunities for their micro, small and medium-sized industries.
2. The Committee shall work to facilitate the activities of the following Parties:
a) The identification of opportunities for the training of personnel of micro, small and medium-sized industries in government procurement procedures;
b) The identification of micro, small and medium-sized industries interested in becoming trading partners of micro, small and medium-sized industries in the territory of the other party;
c) The development of databases on micro-, small and medium-sized industries in the territory of each party to be used by entities of the other party wishing to purchases of smaller companies;
d) Consultations with respect to the factors that each party uses to establish their eligibility criteria for any programme of micro, small and medium-sized industries; and
e) Activities to address any related matter.