(b) its state enterprises, and enterprises with special or exclusive rights, including designated monopolies, provided that requests for such information shall indicate the entities involved, specify the particular goods and/or services and markets concerned, and include indicia that these entities may be engaging in practices that may hinder trade or investment between the Parties; and
(c) exemptions to its measures proscribing anticompetitive activities, provided that requests for such information shall specify the particular goods and/or services and markets to which the request relates.
4. Any information or documents exchanged between the Parties on a confidential basis pursuant to the provisions of this Chapter shall be kept confidential. Neither Party shall, except to comply with its domestic legal requirements, release or disclose such information or documents to any person without the written consent of the Party which provided such information or documents. Where the disclosure of such information or documents is necessary to comply with the domestic legal requirements of a Party, that Party shall notify the other Party where possible before such disclosure is made or otherwise at the earliest practicable time.
5. The Party providing such confidential information shall furnish non- confidential summaries thereof if requested by the other Party. These summaries shall be in sufficient detail to permit a reasonable understanding of the substance of the information submitted in confidence. When a Party indicates that such confidential information is not susceptible to a public summary and where such information is submitted to a judicial authority, it shall be at the discretion of that judicial authority whether to consider such information.
Article 14.9. Dispute Settlement
1. Neither Party may have recourse to dispute settlement under this Agreement for any matter arising under this Chapter.
2. In the event that a breach of this Chapter by an enterprise exercising any regulatory, administrative or other governmental authority that the Party has delegated to it also constitutes a breach of another Chapter of this Agreement, this Article shall not preclude recourse by a Party to dispute settlement for the breach of the other Chapter by such an enterprise.
Article 14.10. Technical Assistance
The Parties may provide each other technical assistance in order to take advantage of their respective experience and to strengthen the implementation of their competition laws and policies.
Chapter 15. Government Procurement
Article 15.1. Definitions
For the purposes of this Chapter:
(a) build-operate-transfer contract and public works concession contract mean any contractual arrangement the primary purpose of which is to provide for the construction or rehabilitation of physical infrastructure, plant, buildings, facilities, or other government owned works and under which, as consideration for a supplier's execution of a contractual arrangement, a procuring entity grants the supplier, for a specified period of time, temporary ownership or a right to control and operate, and demand payment for, the use of such works for the duration of the contract;
(b) covered procurement means a government procurement of goods, services including construction services, or both:
(i) by any contractual means, including purchase and rental or lease, with or without an option to buy , build-operate-transfer contracts and public works concessions contracts;
(ii) for which the value, as estimated in accordance with Article 15.5 equals or exceeds the relevant threshold specified in Annex 15-A;
(iii) that is conducted by a procuring entity;
(iv) is not excluded from coverage by this Agreement; and
(v) subject to the conditions specified in Annex 15-A;
(c) in writing or written means any expression of information in words, numbers, or other symbols, including electronic expressions, that can be read, reproduced, and stored;
(d) international standard means a standard that has been developed in conformity with the document referenced in Article 7.5 (International Standards — Technical Regulations, Standards and Conformity Assessment Procedures Chapter);
(e) limited tender procedure means a procurement method where the procuring entity contacts a supplier or suppliers of its choice in accordance with Article 15.15;
(f) 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;
(g) offset means any condition or undertaking that encourages local development or improves a Party's balance of payments accounts such as the use of domestic content, the licensing of technology, investment, counter-trade and similar actions or requirements;
(h) open tender procedure means those tendering procedures in which all interested suppliers may submit a tender;
(i) procuring entity means an entity listed in Annex 15-A;
(j) publish means to disseminate information in an electronic or paper medium that is distributed widely and is readily accessible to the general public;
(k) selective tender procedure means those tendering procedures in which the procuring entity determines the suppliers that it will invite to submit tenders;
(l) supplier means a person or group of persons that provides or could provide goods or services to a procuring entity; and
(m) technical specification means a tendering requirement that:
(i) sets out the characteristics of:
(A) goods to be procured, including quality, performance, safety and dimensions, or the processes and methods for their production; or
(B) services to be procured, or the processes or methods for their provision, including any applicable administrative provisions;
(ii) addresses terminology, symbols, packaging, marking or labelling requirements, as they apply to a good or service; or
(ii) sets out conformity assessment procedures prescribed by a procuring entity.
Article 15.2. Scope and Coverage
1. This Chapter applies to any measure adopted or maintained by a Party regarding covered procurement.
2. This Chapter does not apply to:
(a) non-contractual agreements or any form of assistance provided by a Party, including grants, loans, equity infusions, fiscal incentives, subsidies, guarantees, cooperative agreements and sponsorship arrangements;
(b) procurement for the direct purpose of providing foreign assistance;
(c) procurement funded by international grants, loans or other assistance to the extent that the provision of such assistance is subject to conditions inconsistent with this Chapter;
(d) public employment contracts;
(e) procurement of a financial service as defined in Article 12.1(e) (Definitions — Financial Services Chapter).
(f) procurement of goods and services by a procuring entity from another entity of the same Party, or between a procuring entity of a Party and a regional or local government of that Party, where no other supplier has been asked to tender;
(g) procurement of goods and services outside the territory of the procuring Party, for consumption outside the territory of the procuring Party;
(h) procurement funded by grants and/or sponsorship payments received from a person other than a procuring entity of a Party;
(i) procurement 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, derivatives and other securities; or
(j) the procurement or rental of land, existing buildings or other immovable property or rights thereon where not part of an arrangement for procurement of construction services.
Article 15.3. General Obligations
1. Each Party shall ensure that its procuring entities comply with this Chapter in conducting covered procurements.
2. No procuring entity may prepare, design, or otherwise structure or divide, in any stage of the procurement, any procurement in order to avoid the obligations of this Chapter.
3. Each Party shall apply to covered procurements of goods the rules of origin that it applies in the normal course of trade to those goods.
Article 15.4. National Treatment and Non-discrimination
1. Each Party shall accord to the goods, services and suppliers of the other Party treatment no less favourable than the most favourable treatment the Party accords to its own goods, services and suppliers.
2. Neither Party may:
(a) treat a locally established supplier 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.
3. For greater clarity, all orders under contracts awarded for covered procurement, such as framework agreements or panel arrangements shall be subject to paragraphs 1 and 2.
4. The provisions of paragraphs 1 and 2 shall not apply to measures concerning customs duties and other charges of any kind imposed on, or in connection with, importation, the method of levying such duties and charges or other import regulations, including restrictions and formalities, and measures affecting trade in services other than measures governing covered procurement.
Article 15.5. 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) take into account all forms of remuneration, including any premiums, fees, commissions, interest, other revenue streams that may be provided for under the contract and, where the procurement provides for the possibility of option clauses, the maximum total value of the procurement, inclusive of optional purchases; and
(b) without prejudice to paragraph 2, where the procurement is to be conducted in multiple parts, with contracts to be awarded at the same time or over a given period to one or more suppliers, base its calculation on the total maximum value of the procurement over its entire duration.
2. 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, a procuring entity shall estimate the value on the basis of objective criteria or apply the following basis of valuation:
(a) in the case of a fixed-term contract:
(i) where the term of the contract is 12 months or less, the total estimated maximum value for its duration; or
(ii) where the term of the contract exceeds 12 months, the total estimated maximum value, including any estimated residual value;
(b) where the contract is for an indefinite period, the estimated monthly instalment multiplied by 48; and
(c) where it is not certain whether the contract is to be a fixed-term contract subparagraph (b) shall be used.
3. Where the total estimated maximum value of a procurement over its entire duration is not known the procurement shall be a covered procurement, unless otherwise excluded under this Agreement.
Article 15.6. Prohibition of Offsets
A Party shall not seek, take account of, impose, or enforce offsets at any stage of a covered procurement.
Article 15.7. Publication of Procurement Measures
Each Party shall promptly publish its procurement laws, regulations, procedures and policy guidelines of general application relating to covered procurements, and any changes or additions to this information.
Article 15.8. Publication of Notice of Intended Procurement
1. In an open tendering procedure, a procuring entity shall publish a notice inviting interested suppliers to submit tenders ("notice of intended procurement") in such a way as to be readily accessible to any interested supplier of the other Party for the entire period established for tendering.
2. Each notice of intended procurement shall include a description of the intended procurement, any conditions that suppliers must fulfil to participate in the procurement, the name of the procuring entity, the address where suppliers may obtain all documents relating to the procurement and the time limits for submission of tenders.
3. Where, in a selective tendering procedure, a procuring entity publishes a notice inviting applications for participation in a procurement, that notice shall be published in such a way as to be readily accessible to any interested supplier of the other Party.
Article 15.9. Procurement Plans
Each Party shall encourage its procuring entities to publish, prior to, or as early as possible in, each fiscal year, a notice regarding their procurement plans for that fiscal year that includes a description of each planned procurement and indicate the expected time of commencement of the related tender process.
Article 15.10. Time Limits
1. A procuring entity shall prescribe time limits for tendering that allow sufficient time for suppliers to prepare and submit responsive tenders, taking into account the nature and complexity of the procurement and the efficient operation of the procurement process. The time allowed for the submission of tenders shall not be set with the intention of causing a competitive disadvantage for suppliers of the other Party, or suppliers offering goods or services of the other Party, in submitting tenders in accordance with the requirements set out in the tender documentation.
2. Except as provided for in paragraphs 3 and 4, a procuring entity shall provide that the final date for the submission of tenders shall not be less than 30 days:
(a) from the date on which the notice of intended procurement is published; or
(b) where the procuring entity has used selective tendering, from the date on which the entity invites suppliers to submit tenders.
3. Under the following circumstances, a procuring entity may establish a time limit for tendering that is less than 30 days, provided that such time limit is sufficiently long to enable suppliers to prepare and submit responsive tenders and is in no case less than 10 days:
(a) where the procuring entity published a separate notice, including a notice of planned procurement under Article 15.9 at least 30 days and not more than 12 months in advance, and such separate notice contains:
(i) a description of the procurement;
(ii) ‘the time limits for the submission of tenders or, where appropriate, applications for participation in a procurement; and
(iii) the address from which documents relating to the procurement may be obtained;
(b) where the procuring entity procures commercial goods or services that
are sold or offered for sale to, and customarily purchased and used by, non-governmental buyers for non-governmental purposes, including goods and services with modifications customary in the commercial marketplace, as well as minor modifications not customarily available in the commercial marketplace;
(c) in the case of second or subsequent publication of notices for procurement of a recurring nature;
(d) where a state of urgency duly substantiated by the procuring entity renders impracticable the time limits specified in paragraph 2; or
(e) when the intended procurement is for goods or services which can be easily and objectively specified and which reasonably imply less effort in the preparation and submission of responsive tenders.
4. A procuring entity may reduce the time limit for submission of a tender by up to five days when it:
(a) publishes a notice of intended procurement in an electronic medium; or
(b) in the context of a selective tendering procedure, issues an invitation to tender via an electronic medium;
and provides, to the extent practicable, the tender documentation via an electronic medium.
5. The application of paragraph 4 shall in no case result in the time limit for submissions being reduced to less than 10 days.
6. A procuring entity shall require all participating suppliers to submit tenders in accordance with a common deadline.
Article 15. Tender Documentation
1. A procuring entity shall provide on request to any supplier participating in a covered procurement or promptly publish, tender documentation that includes all the information necessary to permit suppliers to prepare and submit responsive tenders. The documentation shall include all criteria that the procuring entity will consider in awarding the contract.
2. Where a procuring entity, during the course of a covered procurement, modifies a notice or tender documentation provided to participating suppliers, it shall publish or transmit all such modifications in writing:
(a) to all suppliers that are participating in the procurement at the time the notice or tender documentation is modified, if the identities 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 re-submit their tenders, as appropriate.
3. A procuring entity shall promptly reply to any reasonable request for relevant information by a supplier participating in the procurement. A procuring entity may establish a reasonable time limit to request the relevant information.
4. Procuring entities shall not provide information with regard to a specific procurement in a manner which would have the effect of giving a potential supplier an unfair advantage over competitors.
Article 15.12. Technical Specifications
1. A procuring entity shall not prepare, adopt or apply any technical specification with the purpose or the effect of creating unnecessary obstacles to trade between the Parties.
2. In prescribing the technical specifications for the good or service being procured, a procuring entity shall:
(a) specify the technical specifications, wherever appropriate, in terms of performance and functional requirements, rather than design or descriptive characteristics; and
(b) base the technical specifications on relevant international standards, where such exist and are applicable to the procuring entity, except where the use of an international standard would fail to meet the procuring entity's program requirements or would impose greater burdens than the use of a recognised national standard.
3. A procuring entity shall not prescribe technical specifications that require or refer to a particular trade mark or trade name, patent, copyright, design or type, specific origin or producer or supplier, unless there is no other sufficiently precise or intelligible way of otherwise describing the procurement requirements and provided that, in such cases, words such as "or equivalent" are included in the tender documentation.
4. 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 that procurement.
5. Notwithstanding paragraph 4, a procuring entity may:
(a) conduct market research in developing specifications for a particular procurement; or
(b) allow a supplier that has been engaged to provide design or consulting services to participate in procurements related to such services;
provided it would not give any supplier an unfair advantage over other suppliers.
6. For greater clarity, this Article is not intended to preclude a procuring entity from preparing, adopting, or applying technical specifications to promote the conservation of natural resources and the environment.
Article 15.13. Conditions for Participation
1. A Party shall limit any conditions for participation in a covered procurement to those that ensure the supplier's capability to fulfil the requirements of the procurement.
2. In assessing whether a supplier satisfies the conditions for participation, a Party:
(a) shall evaluate the capabilities 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;
(b) shall base its determination solely on the conditions that a procuring entity has specified in advance in notices or tender documentation;
(c) may 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 or that the supplier has prior work experience in the territory of that Party; and
(d) may require prior experience where relevant to meet the requirements of the procurement.
3. Nothing in this Article shall preclude a Party from excluding a supplier froma procurement on grounds such as:
(a) bankruptcy; (b) false declarations; or
(c) significant or persistent deficiencies in performance of any substantive requirement or obligation under a prior contract.
4. Where a Party requires suppliers to register or pre-qualify before being permitted to participate in a covered procurement that Party shall ensure that a notice inviting suppliers to apply for registration or pre-qualification is published sufficiently in advance of the procurement to allow for interested suppliers, including suppliers of the other Party, to initiate and, to the extent that it is compatible with the efficient operation of the procurement process, complete the registration or qualification procedures.
5. The process of, and the time required for, registering or qualifying suppliers shall not be used in order to prevent or delay the inclusion of suppliers of the other Party on a list of suppliers or prevent such suppliers from being considered for a particular procurement.
6. A Party may establish a multi-use list provided that it publishes, annually or continuously, a notice inviting interested suppliers to apply for inclusion on the list. The notice shall include:
(a) a description of the goods and services, or categories thereof, for which the list may be used;
(b) the requirements to be satisfied by suppliers;
(c) the name and address of the procuring entity or other government agency and other information necessary to contact the procuring entity and obtain all relevant documents relating to the list; and
(d) deadlines for submission of applications for inclusion on that list, where applicable.
7. A Party that maintains a multi-use list shall include on the list all suppliers that satisfy the requirements set out in the notice referred to in paragraph 6 within a reasonably short time.
Article 15.14. Tendering Procedures
1. A procuring entity shall only use open or selective tendering procedures consistent with the provisions of this Chapter, except as provided for in Article 15.15.
2. A procuring entity may use selective tendering procedures in accordance with Article 15.4 and the procurement laws, regulations, procedures and policies of its Party.
3. To ensure effective competition under selective tendering procedures, a procuring entity shall invite tenders from the largest number of domestic suppliers and suppliers of the other Party that is consistent with the efficient operation of the procurement system. It shall select the suppliers to participate in the procedure in a fair and non-discriminatory manner.
Article 15.15. Limited Tendering
1. Provided that it does not use this provision for the purpose of avoiding competition, to protect domestic suppliers or in a manner that discriminates against suppliers of the other Party, a procuring entity may use limited tendering procedures.
2. When a procuring entity applies limited tendering it may choose, according to the nature of the procurement, not to apply Articles 15.8, 15.10, 15.11, 15.12, 15.13, 15.14, 15.16.1 and 15.16.3 to 15.16.6. A procuring entity may use limited tendering only under the following circumstances:
(a) where, in response to a prior notice, invitation to participate, or invitation to tender:
(i) no tenders were submitted or no suppliers requested participation;
(ii) no tenders were submitted that conform to the essential requirements in the tender documentation; or
(iii) no suppliers satisfied the conditions for participation;
and the procuring entity does not substantially modify the essential requirements of the procurement;