(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 where the applicable procedure or condition would be inconsistent with this Chapter.
4. Each Party shall specify the following information in its Annexes to this Chapter:
(a) in Annex 11-A (Central Entities), the central government entities whose procurement is covered by this Chapter;
(b) in Annex 11-B (This Annex is intentionally left blank);
(c) in Annex 11-C (Other Entities), all other entities whose procurement is covered by this Chapter;
(d) in Annex 11-D (Goods), the goods covered by this Chapter;
(e) in Annex 11-E (Services), the services, other than construction services, covered by this Chapter;
(f) in Annex 11-F (Construction Services), the construction services covered by this Chapter;
(g) in Annex 11-G (General Notes and Derogations), any General Notes; and
(h) in Annex 11-H (Means of Publication), means of publications.
5. Where a procuring entity, in the context of covered procurement, requires persons not covered under a Party’s Annexes to procure in accordance with particular requirements, Article 11.4 (General Principles) shall apply mutatis mutandis to such requirements.
Valuation
6. 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 Chapter; 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) where the procurement provides for the possibility of options, the total value of such options.
7. Where 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 of the same type of good or service awarded during the preceding twelve (12) 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 following twelve (12) months; or
(b) the estimated value of recurring contracts of the same type of good or service to be awarded during the twelve (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 the case of a fixed-term contract:
(i) where the term of the contract is twelve (12) months or less, the total estimated maximum value for its duration; or
(ii) where the term of the contract exceeds twelve (12) months, the total estimated maximum value, including any estimated residual value;
(b) where the contract is for an indefinite period the estimated monthly installment multiplied by forty-eight (48); and
(c) where it is not certain whether the contract is to be a fixed-term contract, sub- paragraph (b) above shall be used.
Article 11.3. Security and General Exceptions
1. Nothing in this Chapter shall be construed to prevent any 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 to prevent any 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, philanthropic institutions or prison labour.
Article 11.4. General Principles
National Treatment and 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, treatment no less favourable than the treatment the Party, including its procuring entities, accords to domestic goods, services and suppliers.3
2. With respect to any measure regarding covered procurement, a Party, including its procuring entities, shall not:
(a) treat a locally established supplier of the other Party less favourably than another locally established supplier on the basis of 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. 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 inter-operable 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 of receipt and the prevention of inappropriate access.
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;
(b) avoids conflicts of interest; and
(c) prevents corrupt practices.
Rules of Origin
5. For the sole purpose of determining customs duties applicable to goods imported for purposes of government procurement, the Parties shall apply the same rules of origin that are used to determine customs duties applicable to imports of goods for other purposes.
Measures Not Specific to Procurement
6. Paragraphs 1 and 2 of this Article shall not apply to:
(a) customs duties and charges of any kind imposed on, or in connection with, importation;
(b) the method of levying such duties and charges; and
(c) other import regulations or formalities and measures affecting trade in services other than measures governing covered procurement.
Article 11.5. Industry Development
1. Subject to paragraphs 2, 3, and 4 of this Article, considering the development needs and circumstances of the Parties, and notwithstanding paragraphs 1 and 2 of Article 11.4 (General Principles), Sri Lanka may:
(a) provide a price preference to the suppliers of domestic goods and domestic suppliers of services; and
(b) impose or enforce offsets.
2. With effect from ten (10) years from the date of the entry into force of this Agreement, Sri Lanka shall apply paragraphs 1 and 2 of Article 11.4 (General Principles) in relation to:
(a) suppliers of Singapore-originating products, as defined in Protocol 1 (Concerning the Definition of the Concept of “Originating Products” and Methods of Administrative Co-operation); and
(b) service suppliers of Singapore, which have substantive business operations in the territory of Singapore, as defined by Chapter 7 (Cross-Border Trade in Services).
3. Sri Lanka shall not increase the maximum margin of price preference in force at the date of the entry into force of this Agreement.
4. In the event that Sri Lanka implicitly or explicitly, extends more favourable treatment to any third party or parties, with regard to price preference or offsets in any international agreement, or ceases to provide for price preference or offsets within its domestic legislation after the entry into force of this Agreement, Sri Lanka shall automatically extend the same benefit to Singapore.
Article 11.6. 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 an officially designated electronic or paper medium that is widely disseminated and remains readily accessible to the public; and
(b) provide an explanation thereof to the other Party, on request.
Each Party shall list in Annex 11-H (Means of Publication):
(a) the electronic or paper media in which the Party publishes the information described in paragraph 1 of this Article;
(b) the electronic or paper media in which the Party publishes the notices required by Article 11.7 (Notices), paragraph 8 of Article 11.9 (Qualification of Suppliers), and paragraph 2 of Article 11.16 (Transparency of Procurement Information).
Each Party shall promptly notify the other Party any modification to the Party’s information listed in Annex 11-H (Means of Publication).
Article 11.7. Notices
Notice of Intended Procurement
1. For each covered procurement, a procuring entity shall publish a notice of intended procurement in the appropriate paper or electronic medium listed in Annex 11-H (Means of Publication), except in the circumstances described in Article11.13 (Limited Tendering). Such medium shall be widely disseminated and such notice shall remain readily accessible to the public, at least until the expiration of the time-period indicated in the notice. Parties, including their procurement entities covered under Annex 11-C (Other Entities), are encouraged to publish their notices by electronic means and make them accessible free of charge through a single point of access.
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 options, if any;
(e) the time-frame 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;
(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;
(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; and
(k) where, pursuant to Article 11.9 (Qualification of Suppliers), 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, where applicable, any limitation on the number of suppliers that will be permitted to tender.
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 in English. 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 in the appropriate paper or electronic medium listed in Annex 11-H (Means of Publication), 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 or indicative period of the publication of the notice of intended procurement.
5. A procuring entity covered under Annex 11-C (Other Entities) 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.
Article 11.8. 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, the supplier has previously been awarded one or more contracts by a procuring entity of that Party; and
(b) may require relevant prior experience where essential to meet the requirements 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, 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) professional misconduct or acts or omissions that adversely reflect on the commercial integrity of the supplier; or
(f) failure to pay taxes.
Article 11.9. 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.
2. Each Party shall ensure that:
(a) its procuring entities make efforts to minimise differences in their qualification procedures; and
(b) where its procuring entities maintain registration systems, the entities make efforts to minimise differences in their registration systems.
3. A Party, including its procuring entities, shall not adopt or apply any registration system or qualification procedure with the purpose or the effect of creating unnecessary obstacles to the participation of suppliers of the other Party in its procurement.
Selective Tendering
4. Where a procuring entity intends to use selective tendering, the entity shall:
(a) include in the notice of intended procurement at least the information specified in sub-paragraphs 2(a), (b), (f), (g), (j) and (k) of Article 11.7 (Notices) 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 specified in sub-paragraphs 2(c), (d), (e), (h) and (i) to the qualified suppliers that it notifies as specified in sub-paragraph 3(b) of Article 11.11 (Time Periods).
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 for selecting the limited number of suppliers.
6. Where the tender documentation is not made publicly available from the date of publication of the notice referred to in paragraph 4 of this Article, 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 of this Article.
Multi-Use Lists
7. A procuring entity, where the domestic legislation permits, 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) where published by electronic means, made available continuously, in the appropriate medium.
8. The notice provided for in paragraph 7 of this Article 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 to be satisfied by suppliers for inclusion on 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 where the period of validity is not provided, an indication of the method by which notice will be given of the termination of use of the list; and
(e) an indication that the list may be used for procurement covered by this Chapter.
9. Notwithstanding paragraph 7 of this Article, where a multi-use list will be valid for three (3) years or less, a procuring entity may publish the notice referred to in paragraph 7 of this Article 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 paragraph 2 of Article 11.11 (Time Periods), 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 covered under Annex 11-C (Other Entities)
12. A procuring entity covered under Annex 11-C (Other Entities) 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 paragraph 2 of Article 11.7 (Notices) as is available and a statement that it 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 procuring entity promptly provides to suppliers that have expressed an interest in a given procurement to the procuring entity, sufficient information to permit them to assess their interest in the procurement, including all remaining information required in paragraph 2 of Article 11.7 (Notices), to the extent such information is available.
13. A procuring entity covered under Annex 11-C (Other Entities) 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.