(j) a list and brief description of any conditions for participation of suppliers, including any requirements for specific documents or certifications to be provided by suppliers in connection therewith, unless such requirements are included in tender documentation that is made available to all interested suppliers at the same time as the notice of intended procurement;
(k) where, pursuant to Article 21.8(5), a procuring entity intends to select a limited number of qualified suppliers to be invited to tender, the criteria that will be used to select them and the number of suppliers that will be permitted to tender; and
(l) an indication that the procurement is covered by this Chapter.
Summary notice
3. For each case of intended procurement, a procuring entity shall publish a summary notice that is readily accessible at the same time as the publication of the notice of intended procurement, and in one of the WTO official languages (1). The summary notice shall contain at least the following information:
(a) the subject-matter of the procurement;
(b) the final date for the submission of tenders or, where applicable, any final date for the submission of requests for participation in the procurement or for inclusion on a multi-use list; and
(c) the address from which documents relating to the procurement may be requested.
Notice of planned procurement
4. Procuring entities are encouraged to publish as early as possible in each fiscal year a notice regarding their future procurement plans ("notice of planned procurement"). The notice of planned procurement should include the subject-matter of the procurement and the planned date of the publication of the notice of intended procurement.
5. A procuring entity covered under Section B or C of Annex 21-A or 21-B may use a notice of planned procurement as a notice of intended procurement provided that the notice of planned procurement includes as much of the information referred to in paragraph 2 of this Article as is available to the entity and a statement that interested suppliers should express their interest in the procurement to the procuring entity.
Rules common to notices
6. The notice of intended procurement, summary notice and notice of planned procurement shall be directly accessible by electronic means, free of charge, through a single point of access on the internet. In addition, the notices may also be published in an appropriate paper medium, which shall be widely disseminated and shall remain readily accessible to the public, at least until the expiration of the time period indicated in the notice.
The appropriate paper and electronic medium is listed by each Party in Section I of Annex 21-A and 21-B respectively.
7. Notwithstanding the requirements set out in paragraph 6 regarding the accessibility, by electronic means, free of charge, through a single point of access, of the notices of intended procurement, summary notices and notices of planned procurement, Chile shall, from the date of entry into force of this Agreement and for a transition period of three years until the single point of access is fully operational, establish a gateway site, as a temporary alternative to a single point of access, which should be accessible free of charge and should provide links to the platforms or websites on which the notices are published. The gateway shall contain links to a maximum of four websites, that are:
(a) Mercado público;
(b) Ministerio de Obras Públicas;
(c) Dirección General de Concesiones; and
(d) Diario Oficial.
8. The Parties shall provide for a periodical review of paragraph 7 of this Article, including a discussion within the Sub-Committee referred to in Article 21.21, in particular on the status of implementation of the single point of access.
Article 21.7. Conditions for Participation
1. A procuring entity shall limit any conditions for participation in a procurement to those that are essential to ensure that a supplier has the legal and financial capacities and the commercial and technical abilities to undertake the relevant procurement.
2. In establishing the conditions for participation, a procuring entity:
(a) shall not impose the condition that, in order for a supplier to participate in a procurement, that supplier has previously been awarded one or more contracts by a procuring entity of a Party;
(b) may require relevant prior experience, where essential to meet the requirements of the procurement; and
(c) shall not require prior experience in the territory of the Party as a condition of the procurement.
3. In assessing whether a supplier satisfies the conditions for participation, a procuring entity:
(a) shall evaluate the financial capacity and the commercial and technical abilities of a supplier on the basis of that supplier's business activities both inside and outside the territory of the Party of the procuring entity; and
(b) shall base its evaluation on the conditions that the procuring entity has specified in advance in notices or tender documentation.
4. Where there is supporting evidence, and provided that this paragraph is not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between the Parties, a Party, including its procuring entities, may exclude a supplier on grounds such as:
(a) bankruptcy;
(b) false declarations;
(c) significant or persistent deficiencies in performance of any substantive requirement or obligation under a prior contract or contracts;
(d) final judgments in respect of serious crimes or other serious offences;
(e) grave professional misconduct or acts or omissions that adversely reflect on the commercial integrity of the supplier; or
(f) failure to pay taxes.
Article 21.8. Qualification of Suppliers Registration Systems and Qualification Procedures
1. A Party, including its procuring entities, may maintain a supplier registration system under which interested suppliers are required to register and provide certain information. In that event, the Party shall ensure that interested suppliers have access to information on the registration system through electronic means and that they may request registration at any time. The competent authority shall inform them within a reasonable period of time of the decision to grant or reject the request. If the request is rejected, the decision shall be duly motivated.
2. Each Party shall ensure that:
(a) its procuring entities make efforts to minimise differences in their qualification procedures; and
(b) if its procuring entities maintain registration systems, the entities make efforts to minimise differences in those systems.
3. A Party, including its procuring entities, shall not adopt or apply a registration system or qualification procedure for the purpose or with the effect of creating unnecessary obstacles to the participation of suppliers of the other Party in its procurement.
Selective tendering
4. If a procuring entity intends to use selective tendering, it shall:
(a) include in the notice of intended procurement at least the information set out in subparagraphs (a), (b), (f), (g), (j), (k) and (l) of Article 21.6(2) and invite suppliers to submit a request for participation; and
(b) provide, by the commencement of the time period for tendering, at least the information in subparagraphs (c), (d), (e), (h) and (i) of Article 21.6(2) to the qualified suppliers that it notifies pursuant to subparagraph (b) of Article 21.12(3).
5. A procuring entity shall allow all qualified suppliers to participate in a particular procurement, unless the procuring entity states in the notice of intended procurement any limitation on the number of suppliers that will be permitted to tender and the criteria or justification for selecting the limited number of suppliers. An invitation to submit a tender shall be addressed to a number of suppliers that is necessary to ensure competition.
6. Where the tender documentation is not made publicly available from the date of publication of the notice referred to in paragraph 4, a procuring entity shall ensure that those documents are made available at the same time to all the qualified suppliers selected in accordance with paragraph 5.
Multi-use lists
7. A procuring entity may maintain a multi-use list of suppliers, provided that a notice inviting interested suppliers to apply for inclusion on the list is:
(a) published annually; and
(b) if published by electronic means, made available continuously, in the appropriate medium listed in Section I of Annexes 21-A and 21-B.
8. The notice provided for in paragraph 7 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 the suppliers shall satisfy in order to be included in the list, and the methods that the procuring entity will use to verify that a supplier satisfies the conditions;
(c) the name and address of the procuring entity and other information necessary to contact the entity and obtain all relevant documents relating to the list;
(d) the period of validity of the list and the means for its renewal or termination or, if the period of validity is not provided, an indication of the method by which notice of the termination of use of the list will be given; and
(e) an indication that the list may be used for procurement covered by this Chapter.
9. Notwithstanding paragraph 7, if a multi-use list is valid for three years or less, a procuring entity may publish the notice referred to in paragraph 7 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.
10. A procuring entity shall allow suppliers to apply at any time for inclusion on a multi-use list and shall include on the list all qualified suppliers within a reasonably short time.
11. Where a supplier that is not included on a multi-use list submits a request for participation in a procurement based on a multi-use list and all required documents within the time period provided for in Article 21.12(2), a procuring entity shall examine the request. The procuring entity shall not exclude the supplier from consideration in respect of the procurement on the grounds that the entity has insufficient time to examine the request, unless, in exceptional cases, due to the complexity of the procurement, the entity is not able to complete the examination of the request within the time period allowed for the submission of tenders.
Entities in Sections B and C of Annex 21-A or 21-B
12. A procuring entity covered under Section B or C of Annex 21-A or 21-B may use a notice inviting suppliers to apply for inclusion on a multi-use list as a notice of intended procurement, provided that:
(a) the notice is published in accordance with paragraph 7 of this Article and includes the information required under paragraph 8 of this Article, as much of the information required under Article 21.6(2) as is available, and a statement that the notice constitutes a notice of intended procurement or that only the suppliers on the multi-use list will receive further notices of procurement covered by the multi-use list; and
(b) the entity promptly provides suppliers that have expressed an interest in a given procurement to the entity with sufficient information to permit them to assess their interest in the procurement, including all remaining information required under Article 21.6(2), to the extent that such information is available.
13. A procuring entity covered under Section B or C of Annex 21-A or 21-B may allow a supplier that has applied for inclusion on a multi-use list in accordance with paragraph 10 of this Article to tender in a given procurement, where there is sufficient time for the procuring entity to examine whether the supplier satisfies the conditions for participation.
Information on procuring entity decisions
14. A procuring entity shall promptly inform any supplier that submits a request for participation in a procurement, or an application for inclusion on a multi-use list, of the procuring entity's decision with respect to the request or application.
15. If a procuring entity rejects a supplier's request for participation in a procurement or application for inclusion on a multi-use list, ceases to recognise a supplier as qualified, or removes a supplier from a multi-use list, the entity shall promptly inform the supplier and, on request of the supplier, promptly provide the supplier with a written explanation of the reasons for its decision.
Article 21.9. Technical Specifications
1. A procuring entity shall not prepare, adopt or apply any technical specification or provide for any conformity assessment procedure for the purpose or with the effect of creating unnecessary obstacles to international trade.
2. In providing for the technical specifications for the goods or services being procured, a procuring entity shall, if appropriate:
(a) set out the technical specification in terms of performance and functional requirements, rather than in terms of design or descriptive characteristics; and
(b) base the technical specification on international standards, if they exist, or on national technical regulations, recognised national standards or building codes, if such international standards do not exist.
3. If design or descriptive characteristics are used in the technical specifications, a procuring entity should indicate, if appropriate, that it will consider tenders of equivalent goods or services that demonstrably fulfil the requirements of the procurement by including words such as "or equivalent" in the tender documentation.
4. A procuring entity shall not provide for technical specifications that require or refer to a particular trademark or trade name, patent, copyright, design, 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 words such as "or equivalent" in the tender documentation.
5. A procuring entity shall not seek or accept, in a manner that would have the effect of precluding competition, advice that may 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 the procurement.
6. For greater certainty, a Party, including its procuring 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 21.10. Tender Documentation
1. A procuring entity shall make available to suppliers tender documentation that includes all information necessary to permit suppliers to prepare and submit responsive tenders. Unless already provided in the notice of intended procurement, such documentation shall include a complete description of:
(a) 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 and any requirements to be fulfilled, including any technical specifications, conformity assessment certification, plans, drawings or instructional materials;
(b) any conditions for participation of suppliers, including a list of information and documents that suppliers are required to submit in connection with the conditions for participation;
(c) all evaluation criteria that the entity will apply in the awarding of the contract and, unless price is the sole criterion, the relative importance of those criteria;
(d) if the procuring entity will conduct the procurement by electronic means, any authentication and encryption requirements or other requirements related to the submission of information by electronic means;
(e) if the procuring entity will hold an electronic auction, the rules, including identification of the elements of the tender related to the evaluation criteria, subject to which the auction will be conducted;
(f) if there will be a public opening of tenders, the date, time and place for the opening and, if appropriate, the persons authorised to be present;
(g) any other terms or conditions, including terms of payment and any limitation on the means by which tenders may be submitted, such as whether they are to be submitted on paper or by electronic means; and
(h) any dates for the delivery of goods or the supply of services.
2. In establishing a date for the delivery of goods or the supply of services being procured, a procuring entity shall take into account factors such as the complexity of the procurement, the extent of subcontracting anticipated, and the realistic time required for production, de-stocking and transport of goods from the point of supply or for supply of services.
3. The evaluation criteria set out in the notice of intended procurement or tender documentation may include, among others, price and other cost factors, quality, technical merit, environmental characteristics and terms of delivery.
4. A procuring entity shall promptly:
(a) make available tender documentation to ensure that interested suppliers have sufficient time to submit responsive tenders;
(b) provide, on request, the tender documentation to any interested supplier; and
(c) reply to any reasonable request for relevant information by any interested or participating supplier within the time period established in each Party's legislation, provided that such information does not give that supplier an advantage over other suppliers.
Modifications
5. If a procuring entity modifies the criteria or requirements set out in the notice of intended procurement or tender documentation provided to participating suppliers, or amends or reissues a notice or tender documentation, it shall transmit in writing all such modifications or the amended or reissued notice or tender documentation:
(a) to all suppliers that are participating at the time of the modification, amendment or reissuance, if such suppliers are known to the entity, and in all other cases, in the same manner as the original information was made available; and
(b) in adequate time, considering the nature and complexity of the procurement, to allow such suppliers to modify and resubmit modified tenders, as appropriate.
Article 21.11. Environmental and Social Considerations
1. A Party may allow its procuring entities to use environmental and social considerations throughout the procurement procedure, provided that they are not discriminatory, are consistent with the prohibition of offsets in Article 21.4(6), and are linked to the subject matter of the contract.
2. For greater certainty, environmental and social considerations shall not be prepared, adopted or applied in a manner that constitutes a means of arbitrary or unjustifiable discrimination between the Parties or a disguised restriction of trade between the Parties.
Article 21.12. Time Periods
1. A procuring entity shall, consistent with its own reasonable needs, provide sufficient time for suppliers to prepare and submit requests for participation and responsive tenders, taking into account factors such as:
(a) the nature and complexity of the procurement;
(b) the extent of subcontracting anticipated; and
(c) where electronic means are not used, the time necessary for transmitting tenders by non- electronic means from foreign as well as domestic points.
Such time periods, including any extensions thereof, shall be the same for all interested or participating suppliers.
2. A procuring entity which uses selective tendering shall establish a final date for the submission of requests for participation that shall not, in principle, be earlier than 25 days from the date of publication of the notice of intended procurement. If a state of urgency duly substantiated by the procuring entity renders such time period impracticable, the time period may be reduced to no less than 10 days.
3. Except as provided for in paragraphs 4, 5, 7 and 8, a procuring entity shall establish a final date for the submission of tenders that shall not be earlier than 40 days from the date on which:
(a) in the case of open tendering, the notice of intended procurement is published; or
(b) in the case of selective tendering, the procuring entity notifies suppliers that they will be invited to submit tenders, whether or not it uses a multi-use list.
4. A procuring entity may reduce the time period for tendering established in accordance with paragraph 3 to no less than 10 days if:
(a) the procuring entity has published a notice of planned procurement as set out in Article 21.6(4) at least 40 days, and not more than 12 months, in advance of the publication of the notice of intended procurement, and the notice of planned procurement contains:
(i) a description of the procurement;
(ii) the approximate final dates for the submission of tenders or requests for participation;
(iii) a statement that interested suppliers should express their interest in the procurement to the procuring entity;
(iv) the address from which documents relating to the procurement may be obtained; and
(v) as much of the information that is required for the notice of intended procurement under Article 21.6(2) as is available;
(b) the procuring entity, for recurring contracts, indicates in an initial notice of intended procurement that subsequent notices will establish the time periods for tendering based on this paragraph; or
(c) a state of urgency duly substantiated by the procuring entity renders the time period for tendering established in accordance with paragraph 3 impracticable.
5. A procuring entity may reduce the time period for tendering established in accordance with paragraph 3 by five days for each of the following circumstances:
(a) the notice of intended procurement is published by electronic means;
(b) all the tender documentation is made available by electronic means from the date of the publication of the notice of intended procurement; and
(c) the entity accepts tenders by electronic means.
6. The application of paragraph 5, in conjunction with paragraph 4, shall in no case result in the reduction of the time period for tendering established in accordance with paragraph 3 to less than 10 days from the date on which the notice of intended procurement is published.
7. Notwithstanding any other provision of this Article, if a procuring entity purchases commercial goods or services, or any combination thereof, it may reduce the time period for tendering established in accordance with paragraph 3 to no less than 13 days, provided that it publishes by electronic means, at the same time, both the notice of intended procurement and the tender documentation. In addition, if the procuring entity accepts tenders for commercial goods or services by electronic means, it may reduce the time period established in accordance with paragraph 3 to no less than 10 days.
8. If a procuring entity covered under Section B or C of Annex 21-A or 21-B has selected all or a limited number of qualified suppliers, the time period for tendering may be fixed by mutual agreement between the procuring entity and the selected suppliers. In the absence of agreement, the period shall not be less than 10 days.
Article 21.13. Negotiation
1. A Party may provide for its procuring entities to conduct negotiations with suppliers in the context of covered procurement:
(a) if the procuring entity has indicated its intent to conduct negotiations in the notice of intended procurement as required under Article 21.6(2); or
(b) if it appears from the evaluation that no tender is obviously the most advantageous in terms of the specific evaluation criteria set out in the notice of intended procurement or tender documentation.
2. A procuring entity shall:
(a) ensure that any elimination of suppliers participating in negotiations is carried out in accordance with the evaluation criteria set out in the notice of intended procurement or tender documentation; and
(b) if negotiations are concluded, provide a common deadline for the remaining participating suppliers to submit any new or revised tenders.
Article 21.14. Limited Tendering
1. Provided that it does not use this provision for the purpose of avoiding competition among suppliers or in a manner that discriminates against suppliers of the other Party or protects domestic suppliers, a procuring entity may use limited tendering and may choose not to apply Article 21.6, Article 21.7, Article 21.8, Article 21.10, and Articles 21.12, 21.13, 21.15 and 21.16 under any of the following circumstances:
(a) if:
(i) tenders were not submitted or suppliers did not request participation;
(ii) none of the submitted tenders conforms to the essential requirements of the tender documentation;
(iii) none of the suppliers satisfied the conditions for participation; or
(iv) the tenders submitted have been declared collusive by the competent authority provided that the requirements of the tender documentation are not substantially modified;
(b) if 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 granted by patents, copyrights or other exclusive rights; or
(iii) an absence of competition for technical reasons;
(c) in the case of procurement of additional deliveries by the original supplier of goods or services that were not included in the initial procurement if 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