1. Articles 20.2 and 20.3 shall not be construed as preventing a Party from applying its laws and regulations relating to:
(a) bankruptcy, insolvency, or the protection of the rights of creditors;
(b) issuing, trading or dealing in financial instruments such as securities, futures or derivatives;
(c) financial reporting or record keeping of capital movements, payments or transfers if necessary to assist law enforcement or financial regulatory authorities;
(d) criminal or penal offenses, deceptive or fraudulent practices;
(e) ensuring compliance with orders or judgments in judicial or administrative proceedings; or
2. The laws and regulations referred to in paragraph 1 shall be applied in an equitable and non- discriminatory manner, and not in a manner that would constitute a disguised restriction on capital movements, payments or transfers.
Article 20.5. Temporary Safeguard Measures
In exceptional circumstances of serious difficulties for the operation of the economic and monetary union of the European Union, or a threat thereof, the European Union may adopt or maintain safeguard measures with regard to capital movements, payments or transfers for a period not exceeding six months. Those measures shall be limited to the extent that is strictly necessary.
Article 20.6. Restrictions In Case of Balance of Payments and External Financial Difficulties
1. If a Party experiences serious balance of payments or external financial difficulties, or a threat thereof, it may adopt or maintain restrictive measures with regard to capital movements, payments or transfers (1).
(a) be consistent with the Articles of Agreement of the International Monetary Fund, as applicable;
(b) not exceed those necessary to deal with the situation referred to in paragraph 1 of this Article;
(c) be temporary and be phased out progressively as the situation referred to in paragraph 1 of this Article improves;
(d) avoid unnecessary damage to the commercial, economic and financial interests of the other Party; and
(e) be non-discriminatory as compared with third countries in like situations.
3. In the case of trade in goods, each Party may adopt or maintain restrictive measures in order to safeguard its external financial position or balance of payments. Such measures shall be in accordance with GATT 1994 and the Understanding on the Balance-of-Payments Provisions of the General Agreement on Tariffs and Trade 1994.
4. In the case of trade in services, each Party may adopt or maintain restrictive measures in order to safeguard its external financial position or its balance of payments. Such measures shall be in accordance with Article XII of GATS.
5. A Party that adopts or maintains the measures referred to in paragraphs 1 and 2 shall promptly notify them to the other Party.
6. If restrictive measures are adopted or maintained pursuant to this Article, the Parties shall promptly hold consultations in the Sub-Committee on Services and Investment, unless such consultations are held in other fora of which both Parties are members. The consultations shall assess the balance of payments or external financial difficulties that led to the respective measures, taking into account, inter alia, factors such as:
(a) the nature and extent of the difficulties;
(b) the external economic and trading environment; and
(c) alternative corrective measures which may be available.
7. The consultations pursuant to paragraph 6 shall address the compliance of the restrictive measures with paragraphs 1 and 2. Those consultations shall be based on all relevant findings of statistical or factual nature presented by the International Monetary Fund ("IMF"), where available, and their conclusions shall take into account the assessment by the IMF of the balance of payments and the external financial situation of the Party concerned.
Chapter 21. PUBLIC PROCUREMENT
Article 21.1. Definitions
For the purposes of this Chapter and Annexes 21-A and 21-B:
(a) "commercial goods or services" means goods or services of a type generally sold or offered for sale in the commercial marketplace to, and customarily purchased by, non-governmental buyers for non-governmental purposes;
(b) "construction service" means a service that has as its objective the realisation, by whatever means, of civil or building works, based on Division 51 of the CPC;
(c) "electronic auction" means an iterative process that involves the use of electronic means for the presentation by suppliers of new prices, or new values for quantifiable non-price elements of the tender related to the evaluation criteria, or both, resulting in a ranking or re-ranking of tenders;
(d) "in writing" or "written" means any worded or numbered expression that can be read, reproduced and later communicated; it may include electronically transmitted and stored information;
(e) "limited tendering" means a procurement method whereby the procuring entity contacts a supplier or suppliers of its choice;
(f) "measure" means any law, regulation, procedure, administrative guidance or practice, or any action of a procuring entity relating to a covered procurement;
(g) "multi-use list" means a list of suppliers that a procuring entity has determined satisfy the conditions for inclusion on that list, and that the procuring entity intends to use more than once;
(h) "notice of intended procurement" means a notice, published by a procuring entity, inviting interested suppliers to submit a request for participation, a tender, or both;
(i) "offset" means any condition or undertaking that encourages local development or improves a Party's balance-of-payments accounts, such as the use of domestic content, the licensing of technology, investment, counter-trade and a similar action or requirement;
(j) "open tendering" means a procurement method whereby all interested suppliers may submit a tender;
(k) "procuring entity" means an entity covered under Section A, B or C of Annex 21-A or 21-B;
(l) "qualified supplier" means a supplier that a procuring entity recognises as having satisfied the conditions for participation;
(m) "selective tendering" means a procurement method whereby only qualified suppliers are invited by the procuring entity to submit a tender;
(n) "services" includes construction services, unless otherwise specified;
(o) "standard" means a document approved by a recognised body that provides for common and repeated use, rules, guidelines or characteristics for goods or services, or related processes and production methods, with which compliance is not mandatory; it may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements as they apply to a good, service, process or production method;
(p) "supplier" means a person or group of persons that provides or could provide goods or services; and
(q) "technical specification" means a tendering requirement that:
(i) sets out the characteristics of:
(A) goods to be procured, including quality, performance, safety and dimensions, or the processes and methods for their production; or
(B) services to be procured, including quality, performance, safety or the processes or methods for their provision; or
(ii) addresses terminology, symbols, packaging, marking or labelling requirements, as they apply to a good or service.
Article 21.2. Scope and Coverage
1. This Chapter applies to any measure regarding covered procurement, whether or not it is conducted exclusively or partially by electronic means.
2. For the purposes of this Chapter, "covered procurement" means procurement for governmental purposes:
(a) of a good, a service, or any combination thereof:
(i) as specified in Annex 21-A or 21-B; and
(ii) not procured with a view to commercial sale or resale, or for use in the production or supply of a good or a service for commercial sale or resale;
(b) by any contractual means, including purchase, lease and rental or hire purchase, with or without an option to buy;
(c) for which the value, as estimated in accordance with paragraphs 6 to 8 of this Article, equals or exceeds the relevant threshold specified in Annex 21-A or 21-B at the time of publication of a notice in accordance with Article 21.6;
(d) by a procuring entity; and
(e) that is not otherwise excluded from coverage pursuant to paragraph 3 of this Article or to Annex 21-A or 21-B.
3. Except where otherwise provided for in Annex 21-A or 21-B, this Chapter does not apply to:
(a) the acquisition or rental of land, existing buildings or other immovable property or the rights thereon;
(b) non-contractual agreements or any form of assistance that a Party provides, including cooperative agreements, grants, loans, subsidies, equity infusions, guarantees and fiscal incentives;
(c) the procurement or acquisition of fiscal agency or depository services, liquidation and management services for regulated financial institutions or services related to the sale, redemption and distribution of public debt, including loans and government bonds, notes and other securities;
(d) public employment contracts;
(e) procurement conducted:
(i) for the specific purpose of providing international assistance, including development aid;
(ii) under the particular procedure or condition of an international agreement relating to the stationing of troops or relating to the joint implementation by the signatory countries of a project; or
(iii) under the particular procedure or condition of an international organisation, or funded by international grants, loans or other assistance if the applicable procedure or condition would be inconsistent with this Chapter; or
(f) financial services.
4. This Chapter applies to all procurement covered by Annex 21-A or 21-B, in which each Party's commitments are set out as follows:
(a) in Section A of Annexes 21-A and 21-B, the central government entities whose procurement is covered by this Chapter;
(b) in Section B of Annexes 21-A and 21-B, the sub-central government entities whose procurement is covered by this Chapter;
(c) in Section C of Annexes 21-A and 21-B, all other entities whose procurement is covered by this Chapter;
(d) in Section D of Annexes 21-A and 21-B, the goods covered by this Chapter;
(e) in Section E of Annexes 21-A and 21-B, the services, other than construction services, covered by this Chapter;
(f) in Section F of Annexes 21-A and 21-B, the construction services covered by this Chapter;
(g) in Section G of Annexes 21-A and 21-B, public works concessions covered by this Chapter;
(h) in Section H of Annexes 21-A and 21-B, General Notes;
(i) in Section I of Annexes 21-A and 21-B, the media by means of which the Party publishes its procurement notices, award notices, and other information related to its public procurement system as set out in this Chapter;
(j) in Section J of Annex 21-B, the conversion rate to be used for the threshold values.
5. If a procuring entity, in the context of covered procurement, requires persons not covered under Annex 21-A or 21-B to procure in accordance with particular requirements, Article 21.4 shall apply mutatis mutandis to such requirements.
6. In estimating the value of a procurement for the purpose of ascertaining whether it is a covered procurement, a procuring entity:
(a) shall not divide a procurement into separate procurements or select or use a particular valuation method for estimating the value of a procurement with the intention of totally or partially excluding it from the application of this Chapter; and
(b) shall include the estimated maximum total value of the procurement over its entire duration, whether awarded to one or more suppliers, taking into account all forms of remuneration, including:
(i) premiums, fees, commissions and interest; and
(ii) if the procurement provides for the possibility of options, the total value of such options.
7. If an individual requirement for a procurement results in the award of more than one contract, or in the award of contracts in separate parts ("recurring contracts") the calculation of the estimated maximum total value shall be based on:
(a) the value of recurring contracts for the same type of good or service awarded during the preceding 12 months or the procuring entity's preceding fiscal year, adjusted, if possible, to take into account anticipated changes in the quantity or value of the good or service being procured over the following 12 months; or
(b) the estimated value of recurring contracts for the same type of good or service to be awarded during the 12 months following the initial contract award or the procuring entity's fiscal year.
8. In the case of procurement by lease, rental or hire purchase of goods or services, or procurement for which a total price is not specified, the basis for valuation shall be:
(a) in case of a fixed-term contract:
(i) if the term of the contract is 12 months or less, the total estimated maximum value for its duration;
(ii) if the term of the contract exceeds 12 months, the total estimated maximum value, including any estimated residual value;
(b) if the contract is for an indefinite period, the estimated monthly instalment multiplied by 48;
(c) if it is not certain whether the contract is to be a fixed-term contract, subparagraph (b) shall apply.
Article 21.3. Security and General Exceptions
1. Nothing in this Chapter shall be construed as preventing a Party from taking any action or not disclosing any information that it considers necessary for the protection of its essential security interests relating to the procurement of arms, ammunition or war materials, or to procurement indispensable for national security or for national defence purposes.
2. Subject to the requirement that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between Parties where the same conditions prevail, or a disguised restriction on international trade, nothing in this Chapter shall be construed as preventing a Party from imposing or enforcing measures:
(a) necessary to protect public morals, order or safety;
(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, of philanthropic institutions or of prison labour.
3. The Parties understand that subparagraph (b) of paragraph 2 includes environmental measures necessary to protect human, animal or plant life or health.
Article 21.4. General Principles
Non-discrimination
1. With respect to any measure regarding covered procurement, each Party, including its procuring entities, shall accord, immediately and unconditionally to the goods and services of the other Party and to the suppliers of the other Party offering goods or services of either Party, treatment no less favourable than the treatment that the Party, including its procuring entities, accords to its own goods, services and suppliers.
2. With respect to any measure regarding covered procurement, a Party, including its procuring entities, shall not:
(a) treat a locally established supplier less favourably than another locally established supplier on the basis of the degree of foreign affiliation or ownership; or
(b) discriminate against a locally established supplier on the basis that the goods or services offered by that supplier for a particular procurement are goods or services of the other Party.
Use of electronic means
3. The Parties shall ensure that all communication and information exchange for covered procurement are performed using electronic means, including for the publication of procurement information, notices and tender documentation, and for the receipt of tenders. When conducting covered procurement by electronic means, a procuring entity shall:
(a) ensure that the procurement is conducted using information technology systems and software, including those related to authentication and encryption of information, that are generally available and interoperable with other generally available information technology systems and software;
(b) establish and maintain mechanisms that ensure the integrity of requests for participation and tenders, including the establishment of the time of receipt and the prevention of inappropriate access; and
(c) use electronic means of information and communication for the publication of notices and tender documentation in procurement procedures and, to the widest extent practicable, for the submission of tenders.
Conduct of procurement
4. A procuring entity shall conduct covered procurement in a transparent and impartial manner that:
(a) is consistent with this Chapter, using methods such as open tendering, selective tendering and limited tendering; and
(b) prevents conflicts of interest and corrupt practices, in accordance with relevant laws.
Rules of origin
5. For the purposes of public procurement covered by this Chapter, a Party shall not apply rules of origin to goods imported from the other Party that are different from the rules of origin which that Party applies in the normal course of trade to imports of the same goods.
Offsets
6. With regard to covered procurement, a Party, including its procuring entities, shall not seek, take account of, impose or enforce any offset at any stage of a procurement.
Measures not specific to procurement
7. Paragraphs 1 and 2 shall not apply to customs duties and charges of any kind imposed on, or in connection with, importation, to the method of levying such duties and charges, and to other import regulations or formalities and measures affecting trade in services other than measures governing covered procurement.
Anti-corruption measures
8. Each Party shall ensure that it has appropriate measures in place to address and prevent corruption in their public procurement. Such measures may include procedures to render ineligible for participation in the Party's procurements, either indefinitely or for a stated period of time, suppliers that the judicial authorities of the Party have determined by final decision, to have engaged in bribery, fraud or other illegal actions in relation to public procurement in the territory of that Party. Each Party shall also ensure that it has in place policies and procedures to eliminate, to the extent possible, or manage any potential conflict of interest on the part of those engaged in or having influence over procurement.
Article 21.5. Information on the Procurement System
1. Each Party shall:
(a) promptly publish any law, regulation, judicial decision, administrative ruling of general application, standard contract clause mandated by law or regulation and incorporated by reference in notices or tender documentation and procedure regarding covered procurement, and any modifications thereof, in the relevant electronic or paper media officially designated at national level, which shall be widely disseminated and remain readily accessible to the public; and
(b) provide an explanation thereof to the other Party, upon request.
2. Section I of Annex 21-A and 21-B, respectively, contains a list of:
(a) the electronic or paper media in which the Party concerned publishes the information set out in paragraph 1;
(b) the electronic or paper media in which the Party concerned publishes the notices required by Articles 21.6, 21.8(9) and 21.17(2); and
(c) the website address or addresses where the Party concerned publishes:
(i) its procurement statistics pursuant to Article 21.17(4); or
(ii) its notices concerning awarded contracts pursuant to Article 21.17(5).
3. Each Party shall promptly notify the Sub-Committee referred to in Article 21.21 of any modification to the Party's information listed in Section I of Annex 21-A and 21-B, respectively.
Article 21.6. Notices
Notice of intended procurement
1. For each covered procurement, a procuring entity shall publish a notice of intended procurement, except in the circumstances set out in Article 21.14.
2. Except as otherwise provided in this Chapter, each notice of intended procurement shall include:
(a) the name and address of the procuring entity and other information necessary to contact the procuring entity and obtain all relevant documents relating to the procurement, and their cost and terms of payment, if any;
(b) a description of the procurement, including the nature and the quantity of the goods or services to be procured or, where the quantity is not known, the estimated quantity;
(c) for recurring contracts, an estimate, if possible, of the timing of subsequent notices of intended procurement;
(d) a description of any options;
(e) the timeframe for delivery of goods or services or the duration of the contract;
(f) the procurement method that will be used and whether it will involve negotiation or electronic auction mechanism;
(g) where applicable, the address and any final date for the submission of requests for participation in the procurement;
(h) the address and the final date for the submission of tenders;
(i) the language or languages in which tenders or requests for participation may be submitted, if they may be submitted in a language other than an official language of the Party of the procuring entity;