6. Nothing in this chapter shall prevent a party from developing new procurement policies, procedures or contractual means, provided that they are consistent with this chapter.
1. Nothing in this chapter shall be construed as to prevent a Party from taking any action or not disclosing any information which it considers necessary for the protection of its essential interests to national security or for national defence.
2. Nothing in this chapter shall be construed to prevent a Party from adopting or maintaining measures:
(a) Necessary to protect public morals, public order or safety;
(b) Necessary to protect human life or health, plant or animal;
(c) Necessary to protect intellectual property; or
(d) Relating to goods or services of handicapped persons, of charitable institutions or of prison labour;
Provided that such measures are not applied in a discriminatory manner or constitute a disguised restriction on trade.
3. The parties understand that subparagraph 2 (b) includes environmental measures necessary to protect human life or health, animal or plant.
103:. General Principles. National Treatment and Non-discrimination
1. With respect to any measure covered by this chapter, each Party shall accord immediately and unconditionally to the goods and services of the other party and to the suppliers of the other party offering goods or services such treatment no less favourable than the most favourable treatment accorded by that party to its own goods, services and service suppliers.
2. With respect to any measure covered by this chapter, a party may not:
(a) Treat a locally established supplier less favourably than another locally established supplier on the basis of degree of foreign ownership or affiliation; 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.
The use of electronic means
3. Where the covered procurement is undertaken through electronic means, a contracting entity shall:
(a) To ensure that the procurement is conducted using information technology systems and software, including those related to cryptographic encryption and authentication of information that are generally available and interoperable with other information technology systems and software accessible in general; and
(b) Maintain mechanisms that ensure the integrity of requests for participation and tenders, including the identification of the time of receipt and the prevention of inappropriate access.
Implementation of public procurement
4. A procuring entity shall conduct covered procurement in a transparent and impartial manner that:
(a) It is consistent with this chapter;
(b) Avoids conflicts of interest; and
(c) Prevents corrupt practices.
Rules of origin
5. Each Party shall apply to covered procurement of goods or services imported from or supplied by the other party, the rules of origin that it applies in the normal course of trade to those goods or services.
Countervailing special conditions
6. A procuring entity shall not seek, shall take into consideration, countervailing or impose special conditions used at any stage of a procurement covered.
Measures not specific to procurement
7. Paragraphs 1 and 2 shall not apply to: customs duties and charges of any kind imposed on or in connection with the method of importation; levying such duties and charges; import regulations or other requirements;
Nor to measures affecting trade in services other than measures governing covered procurement.
104:. Use of Electronic Means In Government Procurement
1. The Parties recognise the need and importance of the use of electronic means for the dissemination of information regarding procurement covered.
2. In order to facilitate business opportunities for suppliers of the other Party under this chapter, each Party shall make best efforts to maintain or adopt a single electronic point of entry to allow access to comprehensive information on procurement opportunities in its territory as well as on measures relating to recruitment, particularly those referred to in articles 10.5,,,, 10.6.1 10.6.3 10.8.1 10.8.7 and 10.13.2.
105:. Publication of Procurement-related Information
Each Party shall:
(a) Issued in a timely manner all regulations regarding covered procurement of general application and any modification to such rules, in an electronic medium listed in annex 10.1 and
(b) At the request of the other Party shall provide an explanation relating to such information.
106:. Publication of Notices of Future Procurement Notice
1. For each procurement covered a procuring entity shall publish in a timely manner a notice inviting suppliers to submit tenders or, where appropriate, a request to participate in the procurement, except in the circumstances described in article 10.10.2. The notice shall be published in an electronic medium listed in annex 10.1.
2. Each of future procurement notice shall include:
(a) The description of the future procurement;
(b) The procurement method that will be used;
(c) Any conditions that suppliers must fulfil to participate in the procurement;
(d) The name of the procuring entity publishes the notice;
(e) The address and contact where suppliers may obtain all
The relevant documents relating to the procurement;
(f) Where applicable, the address and the final date for the submission of requests for participation in the procurement;
(g) The address and the final date for the submission of tenders;
(h) The dates for the delivery of goods or services to be procured or the
The duration of the contract; and
(i) An indication that the procurement is covered by this chapter. Notice of procurement plans
3. Each Party shall encourage its procuring entities to publish in an electronic or paper as early as possible in each fiscal year a notice regarding their future procurement plans. Such notices should include the subject matter or category of goods and services to hire and the estimated period during which shall be made public procurement.
1. When a party requires suppliers comply with requirements for registration or qualification or any other requirements or conditions for participation in a procurement, the contracting entity shall publish a notice inviting suppliers to apply for participation. The contracting entity shall publish the notice sufficiently in advance to interested suppliers provide adequate time to prepare and submit applications and for which the contracting entity to evaluate and make its determinations based on such applications.
2. The date of establishment of conditions for participation, a contracting entity:
(a) Shall limit such conditions to those that are essential to ensure that a supplier has the legal and financial capacities and the commercial and technical abilities to fulfill the requirements and technical specifications of the procurement on the basis of the supplier business activities both inside and outside the territory of the Party of the procuring entity;
(b) Shall base its determination solely on the conditions that the procuring entity has specified in advance in notices or records of procurement;
(c) It shall not impose the condition that in order for a supplier to participate in a
Procurement or is awarded a contract that the supplier has previously been awarded one or more contracts by an entity of the Contracting Party in question;
(d) May require relevant prior experience where essential to meet the requirements of the procurement; and
(e) Allow all domestic suppliers and suppliers of the other party that have satisfied the conditions for participation to be recognised as qualified to participate in the procurement.
3. Where there is evidence to warrant a party, including its procuring entities may exclude a supplier from a procurement on grounds such as:
(a) Bankruptcy;
(b) False declarations;
(c) Significant or persistent deficiencies in performance of any substantive requirement or obligation of one or more previous contracts;
(d) Final judgments of serious crimes or other serious offences;
(e) Professional misconduct or acts or omissions that compromise the integrity of the commercial supplier; or
(f) No payment of taxes.
4. 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 their respective public procurement.
5. The process of, and the time required for the registration and qualifying suppliers shall not be used to exclude suppliers of the other party from being considered for a particular procurement.
6. A procuring entity shall promptly inform any supplier that qualification has applied for its decision on that request. Where a procuring entity rejects an application for qualification or ceases to recognize a supplier as one which complies with the conditions of participation, the contracting entity shall promptly inform the supplier and promptly, upon request, provide it with a written explanation of the reasons for the decision of the entity.
108:. Information on Future Recruitment
Procurement records
1. A procuring entity shall provide to interested suppliers to participate in a procurement, recruitment documents that includes all the information necessary to enable them to prepare and submit tenders in accordance with annex 10.8.1. These documents shall be published in an electronic medium listed in annex 10.1.
Technical specifications
2. A procuring entity shall not adopt or apply any technical specification or require any conformity assessment procedure with the purpose or the effect of creating unnecessary obstacles to trade between the parties.
3. In determining any technical specifications for the goods or services to be procured, a contracting entity shall, where appropriate:
(a) Establishing the technical specification in terms of performance and functional requirements rather than design or descriptive characteristics; and
(b) The technical specification base on international standards, where applicable, or otherwise on national technical regulations, recognised national building codes or standards.
4. A contracting entity shall prescribe technical specifications that require or refer to a particular trademark or trade name, patents, copyright, design, type, specific origin or producer or supplier unless there is no other sufficiently precise or intelligible way of describing the procurement requirements and provided that in such cases are also included in documents such as recruitment expressions "" or equivalent.
5. A procuring entity shall not seek or accept, in a manner that would have the effect of precluding that advice, competition 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 that procurement.
6. For greater certainty, this article is not intended to prevent a contracting entity to prepare, adopt or apply technical specifications to promote the conservation of natural resources or protect the environment.
Amendments
7. If, in the course of a covered procurement a procuring entity modifies the criteria or technical requirements set out in a procurement notice or document provided to participating suppliers, or a notice or amends
Contracting document shall transmit such modifications in writing:
(a) To all suppliers that are participating at the time the information is amended if the identification of such suppliers are known, and in all other cases, in the same manner as the original information was transmitted; and
(b) In adequate time to allow such suppliers to modify and resubmit their tenders submitted corrected, as appropriate.
1. A procuring entity shall provide suppliers sufficient time to submit applications to participate in a procurement and to prepare and submit tenders appropriate, taking into account the nature and complexity of the procurement. A procuring entity shall allow a period of not less than forty (40) days from the date on which it publishes the notice of procurement Future and the final date for the submission of tenders.
2. Without prejudice to paragraph 1, a procuring entity may establish a time limit of less than forty (40 days) but in no case less than ten (10) days, in the following circumstances:
(a) If the contracting entity has published a separate notice contains a description of the procurement; the approximate time limits for the submission of tenders or, where appropriate, the conditions for participation in a procurement; and the address where it can obtain the documents relating to procurement in at least forty (40) days and not more than twelve (12) months in advance;
(b) In the case of a new, second or subsequent publication of notices for procurement of a recurring nature;
(c) Where a state of urgency duly substantiated by the procuring entity impracticable renders the time set out in paragraph 1; or
(d) Where a procuring entity purchases commercial goods or services.
3. A Party may provide that a procuring entity may reduce the time limit for submission of tenders laid down in paragraph 1 within five (5) days for each of the following circumstances:
(a) When the future procurement notice is published by electronic means;
(b) When all documents that are made available to the public by electronic means are published since the date of the publication of the notice of procurement and future;
(c) Where tenders through electronic means are provided by the contracting entity.
The use of this paragraph, in conjunction with paragraph 2 shall not result in the reduction of the time limits for tendering set out in paragraph 1 at least ten (10) days of the date of publication of the notice of procurement.
1. A procuring entity shall award contracts by means of open tendering procedures, except where article 10.10.2 applies.
Other procedures
2. Provided that it does not use this provision to avoid competition among suppliers or in a manner that discriminates against suppliers of the other party or protects domestic suppliers, a contracting entity may use other recruitment procedures only under the following circumstances:
(a) Provided that the requirements of the procurement documents are not substantially modified where:
(i) No tenders were submitted or no suppliers requested participation;
(ii) No tenders that comply with the essential requirements in the tender documentation were submitted;
(iii) No suppliers satisfied the conditions for participation; or
(IV) collusive has been in the submission of tenders;
(b) Where the goods or services can be supplied only by a particular supplier and no reasonable alternative or substitute goods or service due to any of the following reasons:
(i) The requirement is for a work of art;
(ii) The protection of patents, copyrights or other exclusive rights of intellectual property; or
(iii) Due to the absence of competition for technical reasons, and in the case of the services intuitu personae;
(c) For additional deliveries by the original supplier or supply of goods or services that were not included in the initial procurement where a change of supplier for such additional goods or services:
(i) Cannot be made for technical or economic reasons such as requirements of interchangeability or interoperability with equipment, software, services and existing installations under the initial procurement; and
(ii) Would cause significant inconvenience or substantial duplication of costs for the procuring entity;
In the case of construction services, the total value of contracts awarded for the additional services, shall not exceed fifty (50) per cent of the amount of the initial contract, provided that such services are listed in the objectives contained in documents and have become necessary to complete the construction due to unforeseen reasons;
(d) Insofar as is where strictly necessary for reasons of extreme urgency by unforeseeable events caused by the contracting entity is not the goods or services can be obtained in time using open tendering or selective, and the use of such procedures would result in serious injury to the procuring entity;
(e) For purchases of goods made in a market of commodities;
(f) Where a procuring entity receives a good first a prototype or limited in amount or hire a service that is developed at its request in the course of and for a particular contract for research, experiment, study or development or original;
(g) Where a contract is awarded to the winner of a design contest provided that:
(i) The contest has been organised in a manner that is consistent with the principles of this chapter, in particular relating to the publication of the notice of procurement and future;
(ii) The participants are qualified or evaluated by a jury or independent body with a view to a design contract being awarded to a winner.
3. A procuring entity shall maintain records or prepare a report in writing on each contract awarded under paragraph 2, consistently with article 10.13.3. Where a Party shall prepare a written report in accordance with this paragraph, they shall include the name of the procuring entity; the value and kind of goods or services procured; and a statement indicating the circumstances and conditions described in paragraph 2 that justify the use of other contracting procedures. Where a party maintains registers, they shall indicate the circumstances and conditions described in paragraph 2 that justify the use of other contracting procedures.
1011:. Electronic Auctions
Where a procuring entity intends to conduct a covered procurement using an electronic auction, the contracting entity will provide to each participant, before the start of the electronic auction, the following information:
(a) The method of automatic evaluation, including the mathematical formula, which is based on the evaluation criteria set out in the procurement and that will be used in the ranking or automatic re-ranking during the auction;
(b) The results of any initial evaluation of the elements of its tender where the contract is to be awarded on the basis of the most advantageous tender; and
(c) Any other relevant information relating to the conduct of the auction.
1012:. Opening of Tenders and Awarding of Contracts Treatment of Tenders
1. A procuring entity shall receive and treat all tenders under procedures that guarantee equality and impartiality of the procurement process and the confidentiality of tenders.
2. Where a procuring entity provides suppliers with an opportunity to correct any unintentional errors of form between the opening of tenders and the awarding of the contract, the contracting entity shall provide the same opportunity to all participating suppliers.
The award of contracts
3. A procuring entity shall require that in order to be considered for an award, the tender:
(a) Be submitted in writing by a supplier that satisfies any conditions for participation; and
(b) At the time of opening, shall be in conformity with the essential requirements specified in the notices and other documents.
4. Unless a procuring entity determines that the award of a contract would be contrary to the public interest, the contracting entity shall award the contract to the supplier that the procuring entity has determined that complies with the conditions for participation and is fully capable of undertaking the contract and whose tender is considered to be the most advantageous solely on the basis of the evaluation criteria and requirements specified in the notices and other documents, or where price is the sole criterion, the lowest price.
5. Where a procuring entity receives a tender with a price that is abnormally lower than the prices in other tenders submitted, it may verify with the supplier if it satisfies the conditions for participation and is capable of fulfilling the terms of the contract.
6. A procuring entity may not cancel a procurement or modify or terminate a contract it has been awarded so as to circumvent this chapter.
1013:. Transparency of Information on Procurement Information to Be Provided to Suppliers
1. A procuring entity shall promptly inform participating suppliers of its decision on the award of a contract, and upon request, it shall do so in writing. Subject to the provisions laid down in article 10.14, a contracting entity shall, upon request, provide a supplier whose tender was not selected, the reasons for that decision and the relative advantages of the successful tender.
Publication of information on the award
2. As soon as practicable after a procurement a procuring entity shall publish in an electronic medium listed in annex 10.1, a notice that includes at least the following information about the contract:
(a) The name of the procuring entity;
(b) A description of the goods or services procured;
(c) The date of the award;
(d) The name of the supplier to which the contract was awarded; and
(e) The value of the contract.
Record-keeping
3. A procuring entity shall maintain records and reports of tendering procedures relating to covered procurements, including the reports referred to in article 10.10.3 and shall maintain such reports and records for a period of at least three (3) years after the date of the award of a contract.
1014:. Disclosure of Information to the other Party
1. At the request of a party the other Party shall promptly provide any information necessary to determine whether the procurement was made fairly and impartially and in accordance with this chapter. This information shall include information on the characteristics and relative advantages of the successful tender.
Non-disclosure of information
2. Any Party, including its contracting authorities or entities review bodies may disclose information that the person providing it has designated as confidential in accordance with their national legislation, except with the authorisation of such person.