tender elements linked to the evaluation criteria, or both, resulting in a ranking or reclassification of tenders.
Article 12.2. Scope of Application and Coverage
1. This Chapter applies to any measure of a Party relating to covered procurement. For purposes of this Chapter, "covered procurement" means procurement for government purposes:
(a) of goods, services or any combination of the two:
(i) as specified in the Appendices to Annex 12.1 of each Party, and
(ii) not acquired for commercial sale or resale, or for use in the production or supply of goods or services for commercial sale or resale;
(b) by means of any contractual instrument, including purchase, hire purchase, lease or hire purchase, with or without an option to buy;
(c) for which the value estimated in accordance with the rules specified in Appendix 8 to Annex 12.1 equals or exceeds the threshold specified in the relevant Appendix to Annex 12.1;
(d) carried out by a procuring entity, and
(e) that is not otherwise excluded from the scope of this Chapter.
2. This Chapter shall not apply to:
(a) the acquisition or lease of existing land, buildings or other immovable property or the rights pertaining thereto;
(b) non-contractual arrangements or any form of assistance that a Party provides, including cooperative agreements, grants, subsidies, loans, equity infusions, guarantees, endorsements and tax incentives;
(c) the procurement or acquisition of fiscal agency or depository services, settlement and management services for regulated financial institutions, or services related to the sale, redemption, and distribution of public debt, including government loans and bonds, notes, and other securities. It is understood that this Chapter shall not apply to the procurement of banking, financial or specialized services related to public indebtedness, or the administration of public debt;
(d) public employment contracts and related measures;
(e) the contracting carried out:
(i) for the specific purpose of providing international aid, including development aid;
(ii) under a particular method or condition of an agreement relating to:
(A) the stationing of troops, or
(B) the joint implementation of a project by the signatory countries to that agreement, or
(iii) under a particular method or condition:
(A) of an international organization, or
(B) financed through international grants, loans or other support,
where the method or condition applicable to subparagraphs (iii)(A) and (iii)(B) is inconsistent with this Chapter.
(f) procurement by a procuring entity or government enterprise of a Party from another procuring entity or government enterprise of the same Party;
3. No entity may prepare, design or otherwise structure or divide any procurement, at any stage thereof, for the purpose of evading the obligations contained in this Chapter.
4. Where an entity awards a contract that is not covered by this Chapter, nothing in this Chapter shall be construed to cover any goods or services that are part of such a contract.
5. Nothing in this Chapter shall prevent a Party from developing new procurement policies, methods or means of contracting, provided that they are consistent with this Chapter.
Article 12.3. General and Safety-Related Exceptions
1. Nothing in this Chapter shall be construed to prevent a Party from taking measures or not disclosing information that it considers necessary for the protection of its essential security interests relating to the procurement of arms, munitions or war materials, or procurement indispensable for national security or national defence purposes.
2. Subject to the requirement that the measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between the Parties where like conditions prevail or a disguised restriction on trade between the Parties, nothing in this Chapter shall be construed to prevent a Party from adopting, maintaining or applying measures:
(a) necessary to protect morals, order or security;
(b) necessary to protect human, animal or plant life or health;
(c) necessary to protect intellectual property, or
(d) relating to goods or services of persons with disabilities, philanthropic institutions, or prison labor.
3. Paragraph 2(b) includes environmental measures such as those for the conservation of natural resources necessary to protect human, animal or plant life or health.
Article 12. National Treatment and Non-Discrimination
1. With respect to any measure covered by this Chapter, each Party shall accord, immediately and unconditionally, to goods and services of the other Party and to suppliers of the other Party offering goods and services of either Party, treatment no less favorable than the most favorable treatment that the Party accords to its own goods, services, and suppliers subject to the limitations and qualifications set out in this Chapter and in Annex 12.1.
2. With respect to any measure covered by this Chapter, neither Party may:
(a) treat a locally established supplier less favourably than another locally established supplier because of its degree of foreign affiliation or ownership, or
(b) discriminate against a locally established supplier on the basis that goods or services offered by that supplier for a particular procurement are goods or services of the other Party.
3. This Article does not apply to measures relating to customs duties or other charges of any kind imposed on or in connection with importation, to the method of levying such duties and charges, or to other import regulations, including restrictions and formalities, or to measures affecting trade in services, other than measures specifically regulating government procurement covered by this Agreement.
Article 12.5. Use of Electronic Media
1. The Parties shall, to the extent possible, encourage the use of electronic means of communication to enable the effective and wide dissemination of information on government procurement, in particular with respect to future procurement opportunities offered by procuring entities, while respecting the principles of transparency and non- discrimination.
2. The Parties shall encourage, to the extent practicable, the use of electronic means for the delivery of procurement documents and the receipt of tenders.
3. If you conduct a covered procurement electronically, a procuring entity:
(a) ensure that procurement is conducted using information technology systems and software, including those related to authentication and cryptographic encryption of information, that are accessible and interoperable with other generally available information technology systems and software; and
(b) maintain mechanisms to ensure the integrity and security of requests for participation and bids, including establishing time and receipt, and preventing inappropriate access.
Article 12.5. Rules of Origin
For purposes of covered procurement, a Party may not apply rules of origin to goods imported from the other Party that are different from the rules of origin that that Party applies to goods imported from the other Party.
Article 12.6. Denial of Benefits
For purposes of the treatment provided for in Article 12.4, either Party, after giving notice to the service suppliers of the other Party and affording due opportunity for the supplier's arguments to be considered in a timely manner, may deny the benefits under this Chapter if the service supplier:
(a) is not a person of the other Party as defined in this Chapter, or
(b) supplies the service from or in the territory of a non-Party.
Article 12.7. Special Compensatory Conditions
With respect to a covered procurement, a Party, including its procuring entities, may not consider, impose or establish special countervailing conditions at any stage of a procurement.
Article 12.8. Publication of Procurement Measures
Each Party shall publish its measures of general application specifically regulating procurement covered by this Chapter, as well as any amendments to such measures, in a publicly accessible electronic medium in the same manner as the original publication, in a timely manner.
Article 12.9. Valuation
1. In calculating the value of a procurement for the purpose of determining whether it is a covered procurement, an entity:
(a) shall not divide a procurement into separate procurements or use a particular method for estimating the value of the procurement for the purpose of avoiding the application of this Chapter;
(b) include the calculation of the maximum total value over its entire duration, taking into account all forms of remuneration, such as premiums, fees, dues, fees, commissions and interest, which might be stipulated in the procurement, and
(c) shall, where the procurement results in the award of procurement contracts at the same time or over a given period to one or more suppliers, base its calculation on the total maximum value of the procurement during the entire period of the procurement.
2. Where the total maximum value of a procurement over its entire duration is not known, that procurement shall be covered by this Chapter.
Article 12. Notices
1. For each covered procurement, a procuring entity shall publish a notice of intended procurement, except in the circumstances set out in Article 12.16. The notice shall be published in the electronic or written media listed in Appendix 7 of Annex 12.1. The notice shall be accessible by electronic means, free of charge.
2. Except as otherwise provided in this Chapter, each notice of future recruitment shall include the following information:
(a) the description of public procurement;
(b) the method of recruitment to be used;
(c) any conditions that suppliers must satisfy in order to participate in the procurement;
(d) the name of the entity publishing the notice;
(e) the address or contact point where suppliers can obtain all relevant procurement documentation;
(f) where applicable, the address and final date for the submission of requests to participate in the procurement;
(g) the address and final date for submission of bids, and
(h) the delivery dates of the goods or services to be procured or the duration of the contract, unless this information is included in the procurement documents.
3. The notice under Article 12.12 shall include:
(a) a description of the goods or services, or categories thereof, for which the list may be used;
(b) the conditions for participation that suppliers must meet in order to be included in the list and the methods that the procuring entity will use to verify that a supplier meets the conditions;
(c) the name and address of the procuring entity and other information necessary to contact the entity and obtain all relevant documents related to the listing, and
(d) the period of validity of the list and the means for its renewal or termination, or where the period of validity is not provided, an indication of the method by which notice of termination of use of the list will be given.
4. A procuring entity may use a notice of intended procurement as a notice of intended procurement provided that the notice of intended procurement includes all information referred to in paragraph 2 that is available, and an indication that interested suppliers will express their interest in the procurement to the procuring entity.
5. Each Party shall encourage its procuring entities to publish in the media listed in Appendix 7 to Annex 12.1, as early as practicable in each fiscal year, a notice regarding its planned future procurement. The notice of planned procurement shall include the subject matter of the procurement and the scheduled date of publication of the notice of planned future procurement.
Article 12.11. Conditions of Participation
1. Where a Party, including its procuring entities, requires suppliers to comply with any conditions for participation in a covered procurement, the procuring entity shall publish a notice inviting suppliers to submit applications for such participation. The procuring entity shall publish the notice sufficiently in advance to allow interested suppliers sufficient time to prepare and submit their applications, and for the procuring entity to evaluate and make its determinations on the basis of such applications. Where the condition for participation is registration, the procuring entity is deemed to comply with this paragraph by keeping the possibility of registration open on an ongoing basis. In establishing conditions for participation and determining whether a supplier satisfies those conditions, a Party, including its procuring entities:
(a) limit any conditions for participating in a procurement to those that are essential to ensure that the supplier has the legal and financial capacity and the commercial and technical skills to carry out the relevant procurement;
(b) may assess the financial capacity and the commercial and technical skills of the supplier based on business activities both within and outside the territory of the Party of the procuring entity. For greater certainty, procuring entities may tequire suppliers to demonstrate strict compliance with their tax and labour obligations;
(c) base its evaluation solely on the terms and conditions that the procuring entity has specified in advance in the notices or procurement documents;
(d) shall not impose as a condition of participation by a supplier in a procurement that the supplier has previously been awarded one or more procurement contracts of a procuring entity of a particular Party or that the supplier has previous work experience in the territory of that Party, and
(e) may require relevant prior experience when essential to meet the requirements of the procurement.
2. A procuring entity shall promptly inform a supplier submitting an application to participate in a procurement or an application for inclusion in a multi-use list of its decision with respect to the application. Where a procuring entity rejects a supplier's application to participate in a procurement or a supplier's application for inclusion in a multi-use list or ceases to recognize a supplier as qualified, that entity shall promptly inform the supplier and, upon request of the supplier, promptly provide a written explanation of the reasons for its decision.
3. A Party, including its procuring entities, may maintain a supplier registration system under which interested suppliers are required to register and provide certain information. Where a procuring entity intends to use selective procurement, it shall allow all qualified suppliers to participate in a particular procurement, unless the procuring entity indicates in the notice of intended procurement any limitation on the number of suppliers that will be allowed to bid and the criteria for selecting a limited number of suppliers.
4. No entity may make it a condition of participation by a supplier in a procurement that the supplier has previously been awarded one or more procurement contracts by an entity of that Party or that the supplier has previous work experience in the territory of that Party.
Article 12.12. Multiple-Use Lists
1. A procuring entity may maintain a multi-use list, provided that notice inviting suppliers interested in applying for inclusion on the list is published annually in the appropriate medium listed in Appendix 7 of Annex 12.1, and when published by electronic means, it is continuously available on the electronic medium listed in that Appendix. Where a list of suppliers is valid for three (3) years or less, a procuring entity may publish the notice only once, at the beginning of the period of validity of the list.
2. The notification under paragraph 1 shall include the information specified in Article 12.10.2.
3. A procuring entity shall permit suppliers to apply at any time for inclusion on a multiple-use list and shall include all qualified suppliers on that list within a reasonable time.
4. A procuring entity may use a notice inviting suppliers to apply for inclusion on a nuultiple-use list as a notice of future procurement, provided that:
(a) the notice is published in accordance with paragraph 1 and includes the information required in paragraphs 2 and 3 of Article 12.10, is available and contains a statement that it constitutes a notice of intended procurement;
(b) the entity promptly provides suppliers that have expressed an interest to the entity in a particular procurement with sufficient information to enable them to evaluate their interest in the procurement, including all relevant information required under Article 12.10.2 to the extent that such information is available, and
(c) a supplier that has applied for inclusion in a multiple-use list in accordance with paragraph 3 may submit tenders in a particular procurement, where there is sufficient time for the procuring entity to examine whether it meets the conditions for participation.
Article 12.13. Procurement Documents
1. A procuring entity shall provide suppliers with all necessary information to enable them to prepare and submit responsive tenders.
2. Unless already stated in the notice of intended procurement, the procurement documents shall include at least a full description of the following:
(a) the nature and quantity of goods or services to be procured, or, if the quantity is not known, the estimated quantity and any requirements to be met, including technical specifications, conformity assessment certificates, drawings, designs or instruction manuals;
(b) the conditions of participation of suppliers, including information and documents to be submitted by suppliers in relation to those conditions;
(c) the evaluation criteria to be considered in the award of a contract and, unless price is the sole criterion, the relative importance of such criteria;
(d) where an entity conducts an electronic auction, the rules applicable to the auction, including the identification of the bid elements related to the evaluation criteria;
(e) if tenders are opened publicly, the date, time and place of the opening;
(f) the date or period for the delivery of the goods or for the supply of the services or the duration of the contract, and
(g) any other terms or conditions, such as payment terms and the manner in which tenders shall be submitted.
3. Where a procuring entity does not publish all procurement documents electronically, it shall ensure that they are available to any supplier upon request, free of charge, subject to the cost of the digital or analog media on which the information is provided, if physical information is required.
4. Where a procuring entity, in the course of a procurement, modifies the criteria referred to in paragraph 2, it may do so only after the deadline for presenting tenders has passed, and shall communicate such modifications in writing:
(a) to all suppliers participating in the procurement at the time of the modification of the criteria, if the identities of such suppliers are known, and otherwise in the same manner as the original information was transmitted, and
(b) in sufficient time to allow such suppliers to modify and resubmit their bids, as appropriate.
Article 12.14. Technical Specifications
1. A contracting entity shall not prepare, adopt or apply any technical specification or provide for any conformity assessment method with the purpose or effect of creating unnecessary obstacles to trade between the Parties.
2. In establishing technical specifications for tendered goods or services, a procuring entity, where appropriate:
(a) set out the technical specifications in terms of performance and functional requirements, rather than descriptive or design characteristics, and
(b) base technical specifications on international standards, where they exist, or otherwise on national technical regulations, recognized national standards or building codes. For this purpose, it shall make such documents available to suppliers.
3. Where descriptive or design characteristics are used in the technical specifications, a procuring entity shall indicate, where appropriate, that it will consider tenders of equivalent goods or services that demonstrate compliance with the procurement requirements, by including terms such as âor equivalent" in the procurement documents.
4. A procuring entity shall not designate technical specifications that require or refer to a particular trademark or trade name, patent, copyright, design or type, specific origin, producer or supplier, unless there is no other sufficiently precise or intelligible way of describing the procurement requirements and provided that, in such cases, the entity includes terms such as "or equivalent" in the procurement documents.
5. A procuring entity shall not seek or accept, in a manner that would have the effect of precluding competition, advice that could be used in the preparation or adoption of any technical specification for a particular procurement from a person that may have a commercial interest in the procurement.
6. For greater certainty, a Party, including its contracting entities, may, in accordance with this Article, prepare, adopt, or apply technical specifications to promote the conservation of natural resources or protect the environment.
Article 12.15. Time Limits
1. A procuring entity shall, consistent with its own needs, provide sufficient time for suppliers to prepare and submit requests for participation and appropriate tenders, taking into account in particular the nature and complexity of the procurement.
2. An entity shall allow a period of not less than thirty (30) days from the date on which the notice of procurement is published and the final date for the submission of bids.
3. Notwithstanding paragraph 2, an entity may establish a time limit of less than thirty (30) days, but in no case less than ten (10) days, in the following circumstances:
(a) where the procuring entity has published a separate notice containing a description of the procurement, the approximate time limits for submission of tenders or, where appropriate, conditions for participation in a procurement and the address where documentation relating to the procurement may be obtained, at least thirty (30) days and not more than twelve (12) months in advance;
(b) in the case of a new, second or subsequent publication of notices for a procurement of a recurrent nature;
(c) where an emergency duly justified by a procuring entity makes it impracticable to comply with the time limit specified in paragraph 2, or
(d) when the procuring entity procures goods or services that are generally sold or offered for sale in the commercial market to, and normally purchased by, non-governmental purchasers for non-governmental purposes.
4. A Party may provide that a procuring entity may reduce by five (5) days the deadline for submitting tenders set out in paragraph 2 for each of the following circumstances, where:
(a) the notice of future procurement is published by electronic means; all procurement documents that are made available to the public by electronic means are published as of the date of publication of the notice of procurement, or
(b) bids may be received by electronic means by the contracting entity.
4. The application of paragraphs 3 and 4 shall not result in a reduction of the time limits set forth in paragraph 2 to less than ten (10) days from the date of publication of the notice of procurement.
Article 12.16. Direct Contracting
1. Provided that this provision is not applied for the purpose of evading competition between suppliers or in a manner that discriminates against suppliers of another Party or protects domestic suppliers, a procuring entity may use procurement direct and may opt out of Articles 12.10, 12.11, 12.12, 12.13, 12.15, 12.17 and 12.18 only under the following circumstances:
(a) when:
(i) no bids are submitted, or no supplier requests participation;
(ii) tenders are not submitted that comply with the essential requirements of the procurement documents;
(iii) no supplier satisfies the conditions for participation, or
(iv) the tenders submitted have been collusive and this has been declared by the competent authority,
provided that the requirements of the procurement documents have not been substantially modified;
(b) where the goods and services can only be supplied by a particular supplier and there is no reasonable alternative or substitute for the goods and services for any of the following reasons:
(i) the requirement is a work of art;
(ii) protection of patents, copyrights or other exclusive rights;
(iii) due to lack of competition for technical reasons, or
(iv) in the case of contracting services intuitu personae, when the supplier is a natural person;
(c) for additional deliveries from the original supplier of goods or services that were not included in the initial procurement when the change of supplier for those additional goods or services:
(i) cannot be done for economic or technical reasons such as interchangeability or interoperability requirements with existing equipment, software, services or facilities purchased under the initial procurement, and