(p) “selective tendering” means a procurement method whereby only qualified suppliers are invited by the procuring entity to submit a tender;
(q) “services” includes construction services, unless otherwise specified;
(r) “standard” means a document approved by a recognised body that provides for common and repeated use, rules, guidelines or characteristics for goods or services, or related processes and production methods, with which compliance is not mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking, or labelling requirements as they apply to goods, services, a process or production method;
(s) “supplier” means a person or group of persons that provides or could provide goods or services; and
(t) “technical specification” means a tendering requirement that:
(i) lays down the characteristics of goods or services to be procured, including quality, performance, safety and dimensions, or the processes and methods for their production or provision; or
(ii) addresses terminology, symbols, packaging, marking, or labelling requirements, as they apply to goods or services.
Article 72. Security and General Exceptions
1. Nothing in this Chapter shall be construed to prevent a Party from taking any action or not disclosing any information that it considers necessary for the protection of its essential security interests relating to the procurement of arms, ammunition 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 the Parties where the same conditions prevail or a disguised restriction on trade between the Parties, nothing in this Chapter shall be construed to prevent a Party from 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.
3. The Parties understand that sub-paragraph 2 (b) includes environmental measures necessary to protect human, animal or plant life or health.
Article 73. 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 another Party and to the suppliers of another Party offering goods or services of any other Party, treatment no less favourable than that accorded to domestic goods, services and suppliers.
2. With respect to any measure regarding covered procurement, no Party, including its procuring entities, shall:
(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 another Party.
3. Paragraphs 1 and 2 shall not apply to 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 74. Use of Electronic Means
1. The Parties shall endeavour to use electronic means of communication to permit efficient dissemination of information on government procurement, particularly as regards tender opportunities offered by entities, in accordance with 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 information technology systems and software, including those related to authentication and encryption of information, that are generally available and interoperable with other generally available information technology systems and software; and
(b) maintain mechanisms that ensure the integrity of requests for participation and tenders, including establishment of the time of receipt and the prevention of inappropriate access.
Article 75. Conduct of Procurement
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; and
(b) prevents conflicts of interest and corrupt practices, in accordance with relevant domestic laws and regulations.
Article 76. Anticorruption Measures
Each Party shall ensure that criminal or administrative measures exist to address corruption in its government procurement. These measures may include procedures to render ineligible for participation in the Party’s procurements, either indefinitely or for a stated period, suppliers that that Party has determined to have engaged in fraudulent or other illegal actions in relation to government procurement in a Party’s territory. Each Party shall also ensure that it has policies and procedures in place to eliminate, to the extent possible, or manage any potential conflict of interest on the part of those involved in or having influence over a procurement.
Article 77. Rules of Origin
For purposes of covered procurement, each Party shall apply rules of origin to goods that it applies in the normal course of trade to imports of the same goods.
Article 78. Offsets
With regard to covered procurement, no Party, including its procuring entities, shall seek, take account of, impose or enforce any offset at any stage of the procurement.
Article 79. Information on the Procurement System
1. Each Party shall promptly publish any measure of general application regarding covered procurement, and any modification thereof, in the relevant electronic or paper medium that is widely disseminated and remains readily accessible to the public.
2. Each Party shall list in Appendix 8 to Annex XIII (Government Procurement) the electronic or paper medium through which a Party shall publish the information referred to in paragraph 1.
3. Each Party shall, upon request, provide another Party with an explanation relating to such information
Article 80. Notices
1. For each covered procurement, a procuring entity shall publish a notice of intended procurement in the electronic or paper medium listed in Appendix 8 to Annex XIII (Government Procurement), except in the circumstances referred to in Article 88 (Limited Tendering). Such medium shall be widely disseminated, and the notice shall remain accessible, at least until expiration of the time period indicated in the notice. The notice shall:
(a) be accessible by electronic means free of charge through a single point of access for procuring entities covered under Appendix 1 to Annex XIII (Government Procurement), as specified in Appendix 8; and
(b) be provided, at least through links in a gateway electronic site that is accessible free of charge for procuring entities covered under Appendix 2 or 3 to Annex XIII (Government Procurement), as specified in Appendix 8.
2. The Parties, including such procuring entities covered under Appendix 2 or 3 to Annex XIII (Government Procurement), are encouraged to publish their notices by electronic means free of charge through a single point of access.
3. Except as otherwise provided in this Chapter, each notice of intended procurement shall include the information specified in Appendix 11 to Annex XIII (Government Procurement).
4. Each Party shall encourage its procuring entities to publish in the appropriate paper or electronic medium listed in Appendix 8 to Annex XIII (Government Procurement), as early as possible in each fiscal year, a notice regarding their future procurement plans. The notice of planned procurement should include the subject matter of the procurement and the planned date of the publication of the notice of intended procurement.
5. A procuring entity covered under Appendix 2 or 3 to Annex XIII (Government Procurement) 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 3 as is available to the entity and a statement that interested suppliers should express their interest in the procurement to the procuring entity.
Article 81. Conditions for Participation
1. In establishing the conditions for participation and assessing whether a supplier satisfies such conditions, a Party, including its procuring entities:
(a) 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;
(b) 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;
(c) shall base its evaluation solely on the conditions that the procuring entity has specified in advance in notices or tender documentation;
(d) 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 a Party; and
(e) may require relevant prior experience where essential to meet the requirements of the procurement.
2. Where there is supporting evidence, and provided that this is not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between the Parties, a Party, including its procuring entities, may exclude a supplier on grounds such as:
(a) bankruptcy or insolvency;
(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) grave professional misconduct or acts or omissions that adversely reflect upon the commercial integrity of the supplier; or
(f) failure to pay taxes.
Article 82. 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. 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 another Party in its procurement.
3. A procuring entity shall promptly inform any supplier that submits a request for participation in a procurement of its decision with respect to that request. Where an entity rejects a supplier’s request for participation or ceases to recognise a supplier as qualified, that entity shall, upon request of the supplier, promptly provide the supplier with a written explanation of the reasons for its decision.
4. Where a procuring entity intends to use selective tendering, it 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.
Article 83. Multi-use Lists
1. A procuring entity may maintain a multi-use list of suppliers, provided that a notice inviting interested suppliers to apply for inclusion on the list is published annually in the appropriate medium listed in Appendix 8 to Annex XIII (Government Procurement), and where published by electronic means, made available continuously in the electronic medium listed in Appendix 8 to Annex XIII (Government Procurement). Where a multi-use list will be valid for three years or less, a procuring entity may publish the notice only once, at the beginning of the period of validity of the list.
2. The notice referred to in paragraph 1 shall include the information specified in Appendix 11 to Annex XIII (Government Procurement).
3. A procuring entity shall allow suppliers to apply at any time for inclusion on a multiuse list and shall include on the list all qualified suppliers within a reasonably short time. Where a procuring entity rejects a supplier’s application for inclusion on a multi-use list or removes a supplier from a multi-use list, that entity shall promptly inform the supplier and, upon request of the supplier, promptly provide the supplier with a written explanation of the reasons for its decision.
Article 84. Tender Documentation
1. A procuring entity shall make tender documentation available to suppliers that includes all information necessary to permit suppliers to prepare and submit responsive tenders. Unless already provided for in the notice of intended procurement, such documentation shall include a complete description of the information specified in Appendix 11 to Annex XIII (Government Procurement).
2. Where a procuring entity does not offer free direct access to the entire tender documents and any supporting documents by electronic means, that procuring entity shall make promptly available the tender documentation at the request of any interested supplier of the Parties. The procuring entity shall also promptly reply to any reasonable request for relevant information by any interested or participating supplier, provided that such information does not give that supplier an advantage over other suppliers.
Article 85. Technical Specifications
1. A procuring entity shall not prepare, adopt or apply any technical specification or prescribe any conformity assessment procedure with the purpose or the effect of creating unnecessary obstacles to trade between the Parties.
2. In prescribing the technical specifications for the goods or services being procured, a procuring entity shall, where appropriate:
(a) set out the technical specification in terms of performance and functional requirements, rather than design or descriptive characteristics; and
(b) base the technical specification on international standards where such exist or otherwise, on national technical regulations, recognised national standards or building codes.
3. Where design or descriptive characteristics are used in the technical specifications, a procuring entity should indicate, where appropriate, that it will consider tenders of equivalent goods or services that demonstrably fulfil the requirements of the procurement by including words such as “or equivalent” in the tender documentation.
4. A procuring entity shall not prescribe any 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, the entity includes words such as “or equivalent” in the tender documentation.
5. 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 the procurement.
6. For greater certainty, a Party, including its procuring entities, may, in accordance with this Article, prepare, adopt, or apply technical specifications to promote the conservation of natural resources or protect the environment.
7. For greater certainty, this Chapter is not intended to preclude a Party, including its procuring entities, from preparing, adopting or applying technical specifications required to protect sensitive government information, including specifications that may affect or limit the storage, hosting or processing of such information outside the territory of the Party.
Article 86. Modifications of Tender Documentation and Technical Specifications
Where, a procuring entity modifies the criteria or requirements set out in a notice or tender documentation provided to participating suppliers, or amends or reissues a notice or tender documentation, it shall transmit in writing all modifications, amended or re-issued notice or tender documentation:
(a) to all suppliers that are participating at the time of the modification, amendment or re-issuance, if known, and in all other cases, in the same manner as the original information was made available; and
(b) in adequate time and considering the nature and complexity of procurement to allow such suppliers to modify and re-submit amended tenders, as appropriate.
Article 87. Time Periods
A procuring entity shall, consistent with its own reasonable needs, provide suppliers sufficient time to prepare and submit requests for participation and responsive tenders, taking into account in particular the nature and complexity of the procurement. Each Party shall apply time periods as specified in Appendix 9 to Annex XIII (Government Procurement). Such time periods, including any extension of the time-periods, shall be the same for all interested or participating suppliers.
Article 88. Limited Tendering
1. Provided that it does not use this provision for the purpose of avoiding competition among suppliers or in a manner that discriminates against suppliers of another Party or protects domestic suppliers, a procuring entity may use limited tendering and choose not to apply Articles 80 (Notices), 81 (Conditions for participation), 82 (Registration systems and qualification procedures), 83 (Multi-use lists), 84 (Tender documentation), 87 (Time periods), 89 (Electronic auctions), 90 (Negotiations), 91 (Treatment of tenders) and 92 (Awarding of contracts) only under the following circumstances:
(a) provided that the requirements of the tender documentation are not substantially modified:
(i) no tenders were submitted or no supplier requested participation;
(ii) no tenders that conform to the essential requirements of the tender documentation were submitted;
(iii) no suppliers satisfied the conditions for participation; or
(iv) the tenders submitted have been collusive according to the Parties’ domestic laws and regulations;
(b) where the goods or services can be supplied only by a particular supplier and no reasonable alternative or substitute goods or services exist for any of the following reasons:
(i) the requirement is for a work of art;
(ii) the protection of patents, copyrights or other exclusive rights; or
(iii) due to an absence of competition for technical reasons;
(c) for additional deliveries by the original supplier of goods and services that were not included in the initial procurement where a change of supplier for such additional goods and services:
(i) cannot be made for economic or technical reasons such as requirements of interchangeability or interoperability with existing equipment, software, services or installations procured under the initial procurement; and
(ii) would cause significant inconvenience or substantial duplication of costs to the procuring entity;
(d) insofar as strictly necessary where, for reasons of extreme urgency brought about by events unforeseeable by the procuring entity, the goods or services could not be obtained in time using an open or selective tendering procedure;
(e) insofar as is strictly necessary where, for reasons of extreme urgency brought about by events unforeseeable by the procuring entity, such as emergency and catastrophe provided for in a Party’s domestic laws and regulations, the goods or services could not be obtained in time using an open or selective tendering procedure. For the purposes of this paragraph, lack of planning of a procuring entity in relation with the available funds within a specific period of time shall not constitute an unforeseeable event;
(f) for goods purchased on a commodity market;
(g) where a procuring entity procures a prototype or a first good or service that is developed at its request in the course of, and for, a particular contract for research, experiment, study or original development (1);
(h) 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; or
(i) where a contract is awarded to a winner of a design contest provided that:
(i) the contest has been organised in a manner that is consistent with this Chapter, in particular with respect to the publication of a notice of intended procurement; and
(ii) the participants are judged by an independent jury with a view to a design contract being awarded to a winner.
2. A procuring entity shall prepare a report in writing on each contract awarded under paragraph 1. The report 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 1 that justified the use of limited tendering.
Article 89. Electronic Auctions
1. Where a procuring entity intends to conduct a covered procurement using an electronic auction, it shall provide each participant, before commencing the electronic auction, with:
(a) the automatic evaluation method, including the mathematical formula, that is based on the evaluation criteria set out in the tender documentation and that will be used in the automatic ranking or 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.
Article 90. Negotiations
1. A Party may provide for its procuring entities to conduct negotiations in the context of covered procurement:
(a) where the entity has indicated such intent in the notice of intended procurement pursuant to Article 80 (Notices); or
(b) where it appears from the evaluation that no tender is obviously the most advantageous in terms of the specific evaluation criteria set out in the notice or tender documentation.
2. A procuring entity shall:
(a) ensure that any elimination of suppliers participating in negotiations is carried out in accordance with the evaluation criteria set out in the notice or tender documentation; and
(b) where negotiations are concluded, provide a common deadline for the remaining participating suppliers to submit any new or revised tenders.
Article 91. Treatment of Tenders
1. 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.
2. A procuring entity shall not penalise any supplier whose tender is received after the time specified for receiving tenders if the delay is due solely to mishandling on the part of the procuring entity.
3. Where a procuring entity provides suppliers with an opportunity to correct unintentional errors of form between the opening of tenders and the awarding of the contract, the entity shall provide the same opportunity to all participating suppliers.
Article 92. Awarding of Contracts
1. To be considered for award, a tender shall be submitted in writing and shall, at the time of opening, comply with the essential requirements set out in the notices and tender documentation and be from a supplier that satisfies the conditions for participation.
2. Unless a procuring entity determines that it is not in the public interest to award a contract, the entity shall award the contract to the supplier that it has determined to be capable of fulfilling the terms of the contract and that, based solely on the evaluation criteria specified in the notices and tender documentation, has submitted:
(a) the most advantageous tender; or
(b) where price is the sole criterion, the lowest price.
3. 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 that it satisfies the conditions for participation and is capable of fulfilling the terms of the contract.
4. A procuring entity shall not use option clauses, cancel a procurement or modify awarded contracts in a manner that circumvents the obligations of this Chapter.
Article 93. Transparency of Procurement Information
1. A procuring entity shall promptly inform participating suppliers of its contract award decisions and, upon request of a supplier, shall do so in writing. Subject to Article 94 (Disclosure of information), a procuring entity shall, upon request, provide an unsuccessful supplier with an explanation of the reasons why it did not select its tender and the relative advantages of the successful supplier’s tender.
2. Promptly and, in any event, no later than 30 days after the award of each contract, a procuring entity shall publish in a paper or electronic medium listed in Appendix 8 to Annex XIII (Government Procurement), a notice that includes at least the following information about the contract:
(a) a description of the goods or services procured;
(b) the name and address of the procuring entity;
(c) the name and, if applicable, the address of the successful supplier;
(d) the value of the successful tender or the highest and lowest offers taken into account in the award of the contract;
(e) the date of award; and
(f) the type of procurement method used, and in cases where limited tendering was used in accordance with Article 88 (Limited tendering), a description of the circumstances justifying the use of limited tendering.
3. Where the entity publishes the notice only in an electronic medium, the information shall remain readily accessible for a reasonable period of time.
4. Each procuring entity shall, for a period of at least three years from the date of the award of a contract, maintain the documentation and reports of tendering procedures and contract awards relating to covered procurement, including the reports provided for in Article 88 (Limited Tendering), and the data that ensures the appropriate traceability of the conduct of covered procurement by electronic means.
Article 94. Disclosure of Information
1. Upon request of another Party, a Party shall provide promptly any information necessary to determine whether a procurement was conducted fairly, impartially and in accordance with this Chapter, including information on the characteristics and relative advantages of the successful tender.