Article 6.10. Selective Tendering
1. Entities that intend to use selective tendering shall in the notice of intended procurement or in the notice inviting suppliers to submit a request for participation invite qualified suppliers to submit a request for participation and indicate the time- limit for submitting requests for participation.
2. When using selective tendering procedures, a procuring entity shall recognize as qualified suppliers such domestic suppliers and suppliers of another Party that meet the conditions for participation in a particular procurement, unless the procuring entity states in the notice or, where publicly available, in the tender documentation, any limitation on the number of suppliers that will be permitted to tender and the objective criteria for such limitation. Procuring entities shall select the suppliers to participate in the selective tendering procedure in a fair and non-discriminatory manner.
3. Where the tender documentation is not made publicly available from the date of publication of the notice referred to in paragraph 1, procuring entities shall ensure that the tender documentation is made available at the same time to all the qualified suppliers selected in accordance with paragraph 2.
4. Entities maintaining permanent lists of qualified suppliers may select suppliers to be invited to tender from among those listed, under the conditions foreseen in Article 6.11. Any selection shall allow for equitable opportunities for suppliers on the lists.
Article 6.11. Qualification of Suppliers
1. Any conditions for participation in procurement shall be limited to those that are essential to ensure that the potential supplier has the capability to fulfil the requirements of the procurement and the ability to execute the contract in question.
2. In the process of qualifying suppliers, entities shall not discriminate between domestic suppliers and suppliers of another Party. In assessing whether a supplier satisfies the conditions for participation, a procuring entity shall evaluate the financial, 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. The procuring entity shall base its assessment on the conditions that it has specified in advance in notices or tender documentation.
3. Nothing in this Article shall preclude the exclusion of any supplier on grounds such as bankruptcy, false declarations or conviction for serious crime such as participation in criminal organizations.
4. Entities shall publish in adequate time any conditions for participation in tendering procedures to enable interested suppliers to initiate and, to the extent that it is compatible with the efficient operation of the procurement practices, to complete the qualification procedure.
5. Procuring entities may establish or maintain a permanent list of qualified suppliers. They shall ensure that suppliers may apply for qualification at any time and that all qualified suppliers so requesting are included in the list within a reasonable and non-discriminatory short period of time. A supplier having requested to be included in the list shall be informed by the entities concerned of the decision in this regard in a timely fashion.
6. Entities operating in the utilities sectors or others may use a notice inviting suppliers to apply for inclusion on a permanent list as a notice of intended procurement and may exclude requests for participation from suppliers not yet qualified in respect of the procurement on the grounds that the procuring entity has insufficient time to examine the application.
Article 6.12. Limited Tendering
1. Subject to the conditions established in paragraph 2 when using the limited tendering procedure, a procuring entity may choose not to publish a contract notice prior to the award of the procurement contract.
2. Provided that limited tendering is not used to avoid maximum possible competition or in a manner which would constitute a means of discrimination among suppliers of another Party or protection to domestic producers or suppliers, entities may award their public contracts by limited tendering procedure in the following cases:
(a) where no suitable tenders have been submitted in response to an open or selective tender, on condition that the requirements of the initial tender are not substantially modified;
(b) where, for technical or artistic reasons, or for reasons connected with protection of exclusive rights, the contract may be performed only by a particular supplier and no reasonable alternative or substitute exists;
(c) for reasons of extreme urgency brought about by events unforeseen by the entity, the products or services could not be obtained in time by means of open or selective tendering procedures;
(d) for additional deliveries of goods or services by the original supplier where a change of supplier would compel the entity to procure equipment or services not meeting requirements of interchangeability with already existing equipment or services;
(e) when an entity procures prototypes or a first product or service which are developed at its request in the course of, and for, a particular contract for research, experiment, study or original development;
(f) when additional services which were not included in the initial contract but which were within the objectives of the original tender documentation have, through unforeseeable circumstances, become necessary to complete the services described therein;
(g) for new services consisting of the repetition of similar services and for which the entity has indicated in the notice concerning the initial service, that limited tendering procedures might be used in awarding contracts for such new services;
(h) for products purchased on a commodity market;
(i) in the case of contracts awarded to the winner of a design contest; in the case of several successful candidates, successful candidates shall be invited to participate in the negotiations as specified in the notice or the tender documents;
(j) for purchases made under exceptionally advantageous conditions that only arise in the very short term in the case of unusual disposals such as those arising from liquidation, receivership, or bankruptcy, but not for routine purchases from regular suppliers.
Article 6.13. Negotiations
A Party may provide for its entities to conduct negotiations:
(a) in the context of procurements in which they have indicated such intent in the notice of intended procurement; or
(b) where it appears from the evaluation that no one tender is obviously the most advantageous in terms of the specific evaluation criteria set forth in the notices or tender documentation.
2. An entity shall:
(a) ensure that any elimination of tenderers in the negotiations is carried out in accordance with the evaluation criteria set out in the notices or tender documentation; and
(b) when negotiations are concluded, provide a common deadline for the remaining tenderers to submit any new or revised tenders.
Article 6.14. Publication of Notices
1. Each Party shall ensure that its entities provide for effective dissemination of the tendering opportunities generated by the relevant government procurement processes, providing suppliers of another Party with all the information required to take part in such procurement.
2. For each covered procurement as defined in paragraph 3 of Article 6.1, except as set out in paragraph 3(c) of Article 6.9 and in Article 6.12, entities shall publish in advance a notice inviting interested suppliers to submit tenders, or where appropriate, requests for participation for that contract.
3. The information in each notice of intended covered procurement shall include at least the following:
(a) name, address, and if available telefax number, electronic address of the entity and, if different, the address where all documents relating to the procurement may be obtained;
(b) the tendering procedure chosen and the form of the contract;
(c) a description of the intended procurement, as well as essential contract requirements to be fulfilled;
(d) any conditions that suppliers must fulfil to participate in the procurement;
(e) time-limits for submission of tenders and, where appropriate, other time limits;
(f) if possible, terms of payment and any other terms; and
(g) costs of the tendering documentation.
4. Each notice referred to in this Article and Appendix 5 of Annex XIV, shall be accessible during the entire time period established for tendering for the relevant procurement.
5. Entities shall publish the notices in a timely manner through means which offer the widest possible and non-discriminatory access to the interested suppliers of the Parties. The notices shall be accessible through the points of access specified in Appendix 2 of Annex XIV.
Article 6.15. Tender Documentation
1. A procuring entity shall provide interested suppliers with tender documentation that includes all the information necessary to permit suppliers to prepare and submit responsive tenders. The documentation shall include the criteria that the entity will consider in awarding the contract, including all cost factors, and the weights or, where appropriate, the relative values that the entity will assign to these criteria in evaluating tenders.
2. Unless already provided in the notice of intended procurement, such documentation shall include a complete description of:
(a) the procurement, including the nature, scope, and, where known, the quantity of the goods or services to be procured and any requirements to be fulfilled, including any technical specifications, conformity certifications, plans, drawings, or instructional materials;
(b) any conditions for participation, including any applicable fees, financial guarantees, information, and documents that suppliers are required to submit;
(c) where there will be a public opening of tenders, the date, time, and place for the opening of tenders; and
(d) any other terms or conditions relevant to the evaluation of tenders.
Article 6.16. Technical Specifications
1. Each Party shall ensure that its entities do not prepare, adopt or apply any technical specifications with a view to, or with the effect of, creating unnecessary obstacles to trade between the Parties.
2. Technical specifications prescribed by entities shall, where appropriate:
(a) be in terms of performance and functional requirements rather than design or descriptive characteristics; and
(b) be based on international standards, where these exist or, in their absence, on national technical regulations, recognised national standards, or building codes.
3. Where design or descriptive characteristics are used in the technical specifications, an entity shall, where appropriate, include words such as "or equivalent" in the technical specifications and consider tenders that demonstrably meet the required design or descriptive characteristics and are fit for the purposes intended.
4. An entity shall not prescribe 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, words such as "as equivalent" are included in the tender documentation.
Article 6.17. Time Limits
1. All time limits established by the entities for the receipt of tenders and requests to participate shall be adequate to allow suppliers of another Party, as well as domestic suppliers, to prepare and to submit tenders, and where appropriate, requests for participation or applications for qualifying. In determining any such time limit, entities shall, consistent with their own reasonable needs, take into account such factors as the complexity of the intended procurement and the normal time for transmitting tenders from foreign as well as domestic points.
2. Each Party shall ensure that its entities shall take due account of publication delays when setting the final date for receipt of tenders or of requests for participation or for qualifying for the suppliers' list.
3. The minimum time limits for the receipt of tenders are specified in Appendix 3 to Annex XIV.
Article 6.18. Treatment of Tenders and Contract Awards
1. Tenders and requests to participate in procedures shall be submitted in writing.
2. A procuring entity shall receive, open, and treat all tenders under procedures that guarantee the fairness and impartiality of the procurement process, and the confidentiality of tenders.
3. Unless a procuring entity determines that it is not in the public interest to award a contract, it shall award the contract to the supplier that the entity has determined to be fully capable of undertaking the contract and, based solely on the evaluation criteria specified in the notices and tender documentation, has submitted:
(a) where price is the sole criterion, the lowest price; or
(b) the most advantageous tender.
4. Each Party shall ensure that its entities provide for effective dissemination of the results of government procurement processes.
5. Entities shall as soon as possible publish the decisions regarding the award of the contract and of the characteristics and relative advantages of the selected tender. Upon request, entities shall inform any eliminated tenderer of the reasons for the rejection of its tender.
Article 6.19. Bid Challenges
1. Each Party shall provide non-discriminatory, timely, transparent and effective procedures enabling suppliers to challenge alleged breaches of any obligations specified in this Chapter for procurements in which they have, or have had, an interest.
2. Challenges shall be heard by an impartial and independent reviewing authority. A reviewing authority, if it is not a court, shall either be subject to judicial review or shall have procedural guarantees of due process.
3. Provided it respects the previous paragraphs, each Party can determine according to its domestic laws and regulations the review procedures applicable to the hearing of challenges under this Article.
4. Each Party shall allow sufficient period of time for suppliers to prepare and submit a challenge.
Article 6.20. Information Technology
1. The Parties shall, to the extent possible, endeavour to use electronic means of communication to permit efficient dissemination of information on government procurement, particularly as regards tender opportunities offered by entities, while respecting the principles of transparency and non-discrimination.
2. When conducting covered procurement by electronic means, a procuring entity shall:
(a) ensure that the procurement is conducted using generally available and interoperable information technology products and software, including those related to authentication and encryption of information; and
(b) maintain mechanisms that ensure the integrity of, and prevent inappropriate access to, requests for participation and tenders.
Article 6.21. Co-operation and Assistance
1. The Parties will co-operate in the area of government procurement by exchanging experience and information about best practices and regulatory frameworks.
2. The Parties shall endeavour to co-operate with a view to achieving a better understanding of their respective government procurement systems, as well as a better access to their respective markets.
3. Technical assistance shall be provided upon a duly motivated request, in particular through jointly developed training programmes.
Article 6. Modifications to Coverage
1. A Party may modify its coverage under this Chapter, provided that it:
(a) notifies the other Parties of the modification; and
(b) provides the other Parties, within 30 days following the date of such notification, appropriate compensatory adjustments to its coverage in order to maintain a level of coverage comparable to that existing prior to the modification.
2. Notwithstanding paragraph 1(b), no compensatory adjustments shall be provided to the other Parties where the modification by a Party of its coverage under this Chapter concerns:
(a) rectifications of a purely formal nature and minor amendments to Annexes XIII and XIV;
(b) one or more covered entities on which government control or influence has been effectively eliminated.
3. The Joint Committee shall endorse any modifications to coverage as set forth by this Article by amending the relevant Annex.
Article 6.23. Further Negotiations
If a Party offers in the future a non-party more favourable conditions for access to its government procurement market than agreed under this Chapter, it shall, upon request of another Party, enter into negotiations with a view to extending coverage under this Chapter on a reciprocal basis.
Article 6.24. Review and Implementation
1. The Joint Committee shall review the implementation of this Chapter every two years, unless otherwise agreed by the Parties; it shall consider any issue arising from it, and take appropriate action in the exercise of its functions.
2. At the request of a Party, the Joint Committee shall convene a working group to address issues related to the implementation of this Chapter.
Article 6.25. Transitional Period
1. Notwithstanding the provisions on national treatment set out in Article 6.4, GCC Member States may grant, for a transitional period not exceeding ten years from the date of entry into force of this Agreement, a price preference programme in favour of their domestic goods and services.
2. A price preference granted under this article shall not exceed 10% of the value of the goods and services produced domestically.
Chapter 7. INSTITUTIONAL PROVISIONS
Article 7.1. The Joint Free Trade Committee
1. The Parties hereby establish the Joint EFTA-GCC Free Trade Committee (hereinafter referred to as the "Joint Committee") comprising representatives of each Party.
2. The Joint Committee may establish standing or ad hoc sub-committees or working groups to assist it in accomplishing its tasks.
3. The Joint Committee shall meet for regular sessions every two years. The regular sessions shall be held alternately in the GCC Member States and the EFTA States. Special sessions can also be held at the request of any Party. Such sessions shall be held within 30 days from the date of the request in the territory of the requesting Party except if the Parties otherwise agree.
4. The meetings of the Joint Committee shall be chaired jointly by one of the EFTA States and one of the GCC Member States. The Joint Committee shall establish its rules of working procedures.
5. The functions of the Joint Committee shall, in addition to functions set out elsewhere in this Agreement, be as follows:
(a) to supervise the implementation of this Agreement;
(b) to review and assess the overall operation of this Agreement;
(c) to review and assess the results of this Agreement, in the light of the experience gained during its application and in the light of its objectives;
(d) to examine ways to further encourage trade and investment flows between the Parties;
(e) to consider any further elaborations and amendments to this Agreement that may be proposed by any Party;
(f) to endeavour to resolve disputes that may arise regarding the interpretation or application of this Agreement;
(g) to supervise the work of all sub-committees and working groups established under this Agreement; and
(h) to carry out any other task assigned to it by the Parties within the scope and objectives of this Agreement.
6. The Joint Committee shall take decisions and make recommendations by consensus.
7. The Joint Committee may decide to amend the Annexes and Appendices to this Agreement. Subject to paragraph 8, the Joint Committee may set a date for the entry into force of such decisions.
8. If a representative of a Party in the Joint Committee has accepted a decision subject to the fulfilment of constitutional requirements, the decision shall enter into force on the date that the last Party notifies that its internal requirements have been fulfilled, unless the decision itself specifies a later date. The Joint Committee may decide that the decision shall enter into force for those Parties that have fulfilled their internal requirements, provided that at least one EFTA State and the GCC Member States are among those Parties. A Party may apply a decision of the Joint Committee provisionally until such decision enters into force for that Party, subject to its constitutional requirements.
9. Each Party shall, within one month after the entry into force of this Agreement, designate an official body to act as a contact point with regard to this Agreement, to receive official communications relating thereto and to provide the Joint Committee with administrative assistance.
Chapter 8. DISPUTE SETTLEMENT
Article 8.1. Objective and Scope
1. The objective of this Chapter is to provide the Parties with a dispute settlement mechanism that aims at achieving, mutually agreed solutions to, or settlement by arbitration of, any dispute arising from this Agreement.
2. Disputes on the same matter arising under both this Agreement and the WTO Agreement may be settled in either forum at the discretion of the complaining Party. (9) The forum thus selected shall be used to the exclusion of the other.
3. For the purpose of this Article, dispute settlement proceedings under the WTO Agreement or this Agreement are deemed to be initiated upon a request for the establishment of a panel by a Party.
4. Before a Party initiates dispute settlement proceedings under the WTO Agreement against another Party as regards a matter arising under both this Agreement and the WTO Agreement, it shall notify the Parties of its intention at least thirty days in advance.
Article 8.2. Good Offices, Conciliation or Mediation
1. Good offices, conciliation and mediation are procedures that are undertaken voluntarily if the Parties involved so agree. They may begin at any time and be terminated at any time.
2. Proceedings involving good offices, conciliation and mediation and all information disclosed during such proceedings shall be confidential, non binding and without prejudice to the Parties' rights in any other proceedings.
Article 8.3. Consultations
1. The Parties shall at all times endeavour to agree on the interpretation and application of this Agreement, and shall make every attempt through co-operation and consultations to arrive at a mutually satisfactory resolution of any matter that might affect its operation.
2. A Party may request in writing consultations with another Party whenever it considers that a measure applied by the Party to which the request is made is inconsistent with this Agreement. Consultations shall take place in the Joint Committee unless the Party making or receiving the request for consultations disagrees.
3. Consultations shall, unless the Parties agree otherwise, be held in the territory of the defending Party.
4. Consultations shall be entered into in good faith within 30 days from the date of receipt of the request for consultations. Consultations on urgent matters, including those on perishable agricultural goods, shall be entered into in good faith within 15 days from the receipt of the request for consultations.
5. The consultations shall be deemed concluded within 60 days from the date of the consultation request, unless both Parties agree to continue consultations. If the Joint Committee has not been involved in the consultations and if the consultations fail the Joint Committee shall as soon as possible meet with the aim of solving the issue at hand. Consultations within the Joint Committee shall take place within 30 days unless the Parties agree otherwise.
6. The Parties involved in the consultations shall provide sufficient information to enable a full examination of how the measure might affect the operation of this Agreement.
7. The proceedings and all information disclosed during the consultations shall remain confidential. The Parties shall treat any confidential or proprietary information exchanged in the course of consultations in the same manner as the Party providing the information.
8. Consultations shall be without prejudice to the rights of the Parties involved in any further proceedings.
9. The Parties involved in the consultations shall inform the other Parties of any mutually agreed resolution of the matter.
Article 8.4. Establishment of Arbitration Panel
1. If the matter has not been resolved within the Joint Committee pursuant to Article 8.3, it may be referred to arbitration by one or more of the Parties involved by means of a written request addressed to the Party complained against. A copy of this request shall also be communicated to all other Parties so that each Party may determine whether to participate in the dispute.
2. Where more than one Party requests the establishment of an arbitration panel relating to the same matter or the request involves more than one defending Party a single arbitration panel shall be established to examine these requests whenever feasible.
3. The complaining Party shall state in its request the measure it considers to be in breach of this Agreement and provide a brief summary of the legal basis of the complaint.
4. A Party which is not a Party to the dispute shall be entitled, on delivery of a written notice to the disputing Parties, to make written submissions to the arbitration panel, receive written submissions, including annexes, of the disputing Parties, attend hearings and make oral statements.
Article 8.5. Arbitration Panel
1. The arbitration panel shall comprise three members.
2. In the written request pursuant to Article 8.4, the Party referring the dispute to arbitration shall designate one member of the arbitration panel.
3. Within 15 days of the receipt of the request referred to in paragraph 2, the Party to which it was addressed shall designate one member of the arbitration panel.
4. The Parties to the dispute shall agree on the appointment of the third member within 30 days of the appointment of the second member. The member thus appointed shall chair the arbitration panel.