Section D. FINAL PROVISIONS AND EXCEPTIONS
Article 18.56. Contact Points
1. No later than one 1 (one) year after the date of entry into force of the Agreement, each Party shall designate contact points and notify the other Party of their contact details with a view to:
(a) facilitate the provision of information to the other Party regarding the implementation of this Chapter, such as:
(i) commercial and technical aspects of the supply of services; and
(ii) the registration, recognition and obtaining of professional qualifications; and
(b) consider any other issues regarding the implementation of this Chapter that are referred by a Party.
2. Each Party shall promptly notify the other Party of any changes to these contact points.
Article 18.57. Subcommittee on Trade In Services and Establishment
1. The Subcommittee on trade in services and establishment, established pursuant to Article 9.9(4), shall have the following functions, in addition to those listed in Articles 2.4 and 9.9:
(a) conduct the preparatory technical work in the event of a revision of this Chapter in accordance with Article 18.58; and
(b) discuss relevant subjects for trade in services and establishment, including opportunities for the expansion of mutual investment in services and non-services sectors.
2. The Subcommittee may invite, on an ad hoc basis, representatives of relevant entities, with the necessary expertise relevant to the issues to be addressed.
Article 18.58. Review Clause
In light of its objectives, this Chapter may be reviewed no earlier than 3 (three) years after the date of entry into force of this Agreement, or in the context of an overall review of this Agreement.
Article 18.59. Denial of Benefits
A Party may deny the benefits of this Chapter to:
(a) the supply of a service, if it establishes that the service is supplied from or in the territory of a third country; or
(b) a juridical person, if it establishes that it is a juridical person of a third country.
Chapter 19. TRANSFERS OR PAYMENTS FOR CURRENT ACCOUNT TRANSACTIONS, CAPITAL MOVEMENTS AND TEMPORARY SAFEGUARD MEASURES
Article 19.1. Capital Account
With regard to transactions on the capital and financial account of the balance of payments, each Party shall allow the free movement of capital for the purposes of establishment of direct investments as provided for in Chapter 18. Such movements shall include the liquidation or repatriation of such capital.
Article 19.2. Current Account
Each Party shall allow, in a freely convertible currency and in accordance with the Articles of Agreement of the International Monetary Fund adopted at the United Nations Monetary and Financial Conference, in Bretton Woods, New Hampshire, on 22 July 1944 (hereinafter referred to as "Agreement of the International Monetary Fund"), any payments and transfers with respect to transactions on the current account of the balance of payments that fall within the scope of this Agreement.
Article 19.3. Application of Laws and Regulations Relating to Transfersor Payments for Current Account Transactions and Capital Movements
Nothing in Articles 19.1 and 19.2 shall be construed as preventing a Party from applying in an equitable and non-discriminatory manner, and in a way that would not constitute a disguised restriction on transfers or payments for current account transactions or on capital movements its laws and regulations relating to:
(a) bankruptcy, insolvency or the protection of the rights of creditors;
(b) issuing, trading or dealing in securities;
(c) criminal or penal offences (1) ;
(d) financial reporting or record keeping of transfers if necessary to assist law enforcement or financial regulatory authorities; or
(e) the satisfaction of judgments in adjudicatory proceedings.
Article 19.4. Temporary Safeguard Measures
If, in exceptional circumstances, transfers or payments for current account transactions or capital movements cause or threaten to cause serious difficulties for the operation of the Economic and Monetary Union of the European Union, the European Union may adopt safeguard measures that are strictly necessary to address those difficulties or the threat thereof for a period not exceeding 6 (six) months.
Article 19.5. Restrictions to Safeguard the Balance of Payments
1. If, in exceptional circumstances, a Party experiences serious balance-of-payments difficulties including with regard to the operation of monetary policy or exchange rate policy, or external financial difficulties or the threat thereof, it may adopt or maintain restrictive measures with regard to transfers or payments for current account transactions or capital movements.
2. The measures referred to in paragraph 1 shall:
(a) be non-discriminatory compared to those applied to a third country in like situations;
(b) be consistent with the Articles of Agreement of the International Monetary Fund, as applicable;
(c) avoid unnecessary damage to the commercial, economic and financial interests of the other Party; and
(d) be temporary, proportional and strictly necessary to address the difficulties and be phased out progressively as the situation referred to in paragraph 1 improves. If extremely exceptional circumstances arise such that a Party seeks to extend those measures beyond a period of 1 (one) year, it shall notify the other Party that it will introduce such an extension.
Article 19.6. Final Provisions
1. Nothing in this Chapter shall be construed as limiting the rights of economic operators of the Parties to benefit from any more favourable treatment that may be provided for in any existing bilateral or multilateral agreement to which a Party is party.
2. The Parties shall consult each other with a view to facilitating the movement of capital falling within the scope of this Agreement between them in order to promote the objectives of this Agreement.
CHAPTER 20
GOVERNMENT PROCUREMENT
ARTICLE 20.1
Objectives
The Parties recognise the contribution of transparent, competitive and open tendering to economic development and set as their objective the effective opening of their respective procurement markets.
ARTICLE 20.2
Definitions
For the purposes of this Chapter, the following definitions apply:
(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 either 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, which 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 participation in that list, and that the procuring entity intends to use more than once;
(h) "negotiation" means a way of conducting the procurement procedure subject to the principles of transparency and non-discrimination, that is limited to specific situations in which procuring entities are allowed to negotiate with suppliers when certain conditions are met;
(i) "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;
(j) "offsets" means measures used to encourage local development or improve the balance-of-payments accounts by means of the use of domestic content, the licensing of technology, investment requirements, counter-trade or similar requirements;
(k) "open tendering" means a procurement method whereby all interested suppliers may submit a tender;
(l) "procuring entity" means an entity covered under the Appendices to Annexes 20-A to 20-E;
(m) "qualified supplier" means a supplier that a procuring entity recognises as having satisfied the conditions for participation;
(n) "selective tendering" means a procurement method whereby only qualified suppliers are invited by the procuring entity to submit a tender;
(o) "services" includes construction services, unless otherwise specified;
(p) "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;
(q) "supplier" means a person or persons that provides or could provide goods or services; and
(r) "technical specification" means a tendering requirement that:
(i) lays down the characteristics of goods or services to be procured, including quality, performance, safety and dimensions, or the processes and methods for their production or provision; or
(ii) addresses terminology, symbols, packaging, marking or labelling requirements, as they apply to a good or a service.
ARTICLE 20.3
Scope
1. This Chapter applies to covered procurement. Covered procurement means procurement for governmental purposes:
(a) of goods, services, or any combination thereof:
(i) as specified in each Party's Appendices to Annexes 20-A to 20-E; and
(ii) not procured with a view to commercial sale or resale, or for use in the production or supply of goods or services 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 equals or exceeds the relevant threshold specified in each Party's Appendices to Annex 20-A to 20-E, at the time of publication of a notice in accordance with Article 20.13;
(d) by a procuring entity as specified in each Party's Appendices to Annexes 20-A to 20-E; and
(e) that is not otherwise excluded from coverage.
2. Except where provided otherwise in each Party's Appendices to Annexes 20-A to 20-E, 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, equity infusions, guarantees and fiscal incentives, government provision of goods and services to state, regional, or local government entities;
(c) the procurement or acquisition of fiscal agency or depositary 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; or
(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;
(iii) under the particular procedure or condition of an international agreement relating to the joint implementation by the signatory countries of a project; or
(iv) under the particular procedure or condition of an international organisation, or funded by international grants, loans or other assistance where the applicable procedure or condition would be inconsistent with this Chapter.
3. Each Party shall specify in each of the Appendices to Annexes 20-A to 20-E the following information:
(a) in Appendices 20-A-1, 20-B-1, 20-C-1, 20-D-1 and 20-E-1, the central government entities whose procurement is covered by this Chapter;
(b) in Appendices 20-A-2, 20-B-2, 20-C-2, 20-D-2 and 20-E-2, the sub-central government entities whose procurement is covered by this Chapter;
(c) in Appendices 20-A-3, 20-B-3, 20-C-3, 20-D-3 and 20-E-3, all other entities whose procurement is covered by this Chapter;
(d) in Appendices 20-A-4, 20-B-4, 20-C-4, 20-D-4 and 20-E-4, the goods covered by this Chapter;
(e) in Appendices 20-A-5, 20-B-5, 20-C-5, 20-D-5 and 20-E-5, the services, other than construction services, covered by this Chapter;
(f) in Appendices 20-A-6, 20-B-6, 20-C-6, 20-D-6 and 20-E-6, the construction services covered by this Chapter; and
(g) in Appendices 20-A-7, 20-B-7, 20-C-7, 20-D-7 and 20-E-7, any General Notes.
4. Where a procuring entity, in the context of covered procurement, requires persons not covered under a Party's Appendices to Annex 20-A to 20-E to procure on its behalf, Article 20.6 shall apply mutatis mutandis.
ARTICLE 20.4
Valuation of contracts
1. In estimating the value of a procurement for the purpose of ascertaining whether it is a covered procurement, a procuring entity shall:
(a) neither divide a procurement into separate procurements nor 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 Part of the Agreement; and
(b) 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.
2. 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 (both hereinafter referred to as "recurring procurements"), the calculation of the estimated maximum total value shall be based on
(a) the value of recurring procurements of the same type of good or service awarded during the preceding 12 (twelve) months or the procuring entity's preceding fiscal year, adjusted, where possible, to take into account anticipated changes in the quantity or value of the good or service being procured over the subsequent 12 (twelve) months; or
(b) the estimated value of recurring procurements of the same type of good or service to be awarded during the 12 (twelve) months subsequent to the initial contract award or the procuring entity's fiscal year.
3. 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 the case of a fixed-term contract
(i) where the term of the contract is 12 (twelve) months or less, the total estimated maximum value for its duration; or
(ii) where the term of the contract exceeds 12 (twelve) months, the total estimated maximum value, including any estimated residual value;
(b) if the contract is of an indefinite duration, the estimated monthly instalment multiplied by 48 (forty-eight); and
(c) if it is not certain whether the contract is of indefinite duration or a fixed-term contract, point (b) shall apply.
ARTICLE 20.5
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, defence products or war materials, or to procurement indispensable for national security or for national defence purposes.
2. Subject to the requirement that such measures not be applied in a manner that 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) relating to goods or services of natural persons with disabilities, of philanthropic institutions or of prison labour;
(b) necessary to protect public morals, order or safety;
(c) necessary to protect human, animal, or plant life or health, including environmental measures; or
(d) necessary to protect intellectual property.
ARTICLE 20.6
Non-discrimination
1. With respect to any measure related to covered procurement:
(a) the European Union, including its procuring entities, shall accord immediately and unconditionally to the goods and services of the Signatory MERCOSUR States and to the suppliers of the Signatory MERCOSUR States offering those goods and services, treatment no less favourable than the treatment accorded to its domestic goods, services and suppliers;
(b) each Signatory MERCOSUR State, including its procuring entities, shall accord immediately and unconditionally to the goods and services of the European Union and to the suppliers of the European Union offering those goods and services, treatment no less favourable than the treatment accorded to its domestic goods, services and suppliers.
2. With respect to any measure concerning covered procurement, the European Union and each Signatory MERCOSUR State, including their respective 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 to, or ownership by persons of the other Party 55 56 ; 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.
3. This Article does not apply to customs duties or any other measure of an equivalent nature which have an impact on foreign trade, or to other import regulations and measures affecting trade in services, different from the ones which specifically regulate public procurement covered under this Chapter.
ARTICLE 20.7
Use of electronic means
1. Each Party shall conduct covered procurement by electronic means to the widest extent possible and shall cooperate in developing and expanding the use of electronic means in government procurement systems.
2. If a procuring entity conducts a covered procurement by electronic means, it 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; and
(b) maintain mechanisms that ensure the integrity of requests for participation and tenders, including establishment of the time and receipt and the prevention of inappropriate access.
ARTICLE 20.8
Conduct of procurement
A procuring entity shall conduct covered procurement in a transparent and impartial manner that avoids conflicts of interest, prevents corrupt practices and that is consistent with this Chapter, using the following methods: open tendering, selective tendering or limited tendering. Each Party shall adopt or maintain sanctions against corrupt practices according to its law.
ARTICLE 20.9
Rules of origin
For the purposes of Article 20.6, determination of the origin of goods shall be made on a non‑preferential basis.
ARTICLE 20.10
Denial of benefits
Without prejudice to the time-periods of the procurement procedure, and subject to prior notification to a service supplier of the other Party and, if requested, consultations with a service supplier of the other Party, a Party may deny the benefits of this Chapter to that supplier, if such supplier is a juridical person of the other Party not engaged in substantial business operation in the territory of that other Party.
ARTICLE 20.11