(iv) product bans and recalls; and
(v) procedures, strategies and programmes for product surveillance activities; and
(b) cooperate as mutually determined, on, inter alia:
(i) the development of technical regulations;
(ii) regulatory reviews and implementation; and
(iii) the development and implementation of risk management principles, including product monitoring, safety, compliance and enforcement procedures.
Article 7.11. Institutional Arrangements
1. In order to facilitate communication, each Party shall designate a contact point and exchange the contact details of relevant officials of that contact point, including information on telephone, facsimile, e-mail and other relevant details, no later than 2 months following the date of entry into force of this Agreement.
2. Each Party shall notify the other Party promptly of any change of its contact point or any amendments to the information of the relevant officials.
3. The Parties hereby establish a Sub-Committee on Technical Barriers to Trade (“Sub-Committee on TBT”) under the Committee on Trade in Goods to promote and monitor the implementation and administration of this Chapter. The Sub-Committee on TBT shall be comprised of officials from the contact points designated under paragraph 1 and any other representatives of the Parties.
4. The Sub-Committee on TBT may address any matter related to the effective functioning of this Chapter. The responsibilities and functions of the Sub-Committee on TBT shall include:
(a) promptly addressing any issue that a Party raises related to the preparation, adoption and application of standards, technical regulations or conformity assessment procedures by the other Party;
(b) enhancing cooperation in the development and improvement of technical regulations and conformity assessment procedures;
(c) exchanging information on standards, technical regulations and conformity assessment procedures, in response to all reasonable requests for such information from a Party;
(d) exchanging information, where appropriate, on developments in non-governmental, regional, and multilateral fora related to standardisation, technical regulations and conformity assessment procedures;
(e) exploring any means aimed at improving access to the Parties’ respective markets through elimination of unnecessary technical barriers to trade and enhancing the functioning of this Chapter;
(f) consulting (4) on any matter arising under this Chapter, at a Party's request; and
(g) addressing any matter related to the effective functioning of this Chapter, including the monitoring, implementation and reviewing of this Chapter, in light of any developments under the TBT Agreement.
5. The Sub-Committee on TBT may meet at such venues and time as may be agreed by the Parties. Meetings may also be held via teleconference, videoconference or any other means agreed by the Parties.
6. The Sub-Committee on TBT may, by mutual agreement between the Parties, establish ad hoc working groups to undertake responsibilities or carry out functions set out in paragraph 4 if necessary.
7. The terms of reference of the Sub-Committee on TBT shall be determined in its first meeting.
8. The Sub-Committee on TBT shall report its activities to the Committee on Trade in Goods.
Article 7.12. Annexes and Implementing Arrangements
1. The Parties, in accordance with Article 16.1.4 (b) (iii), may conclude or amend Annexes to this Chapter setting out agreed principles and procedures relating to technical regulations and conformity assessment procedures applicable to trade between them.
2. The Parties may develop implementing arrangements setting out details for the implementation of Annexes referred to in paragraph 1, or arrangements made in relation to any work under this Chapter.
3. The Parties shall seek to incorporate any existing arrangements concerning technical regulations and conformity assessment procedures that are specifically applicable to trade between the Parties into the Annexes and implementing arrangements.
Chapter 8. TRADE REMEDIES
Article 8.1. Countervailing Measures
1. The Parties maintain their rights and obligations regarding countervailing measures under Article VI of GATT 1994 and the SCM Agreement.
2. Except as otherwise provided in paragraph 3, this Agreement does not confer any additional rights or obligations on the Parties with regard to actions taken pursuant to Article VI of GATT 1994 and the SCM Agreement with regard to the application of countervailing measures.
3. Before an investigation is initiated by a Party to determine the existence, degree and effect of any alleged subsidy in the other Party, as provided for in Article 11 of the SCM Agreement, the Party considering the initiation of an investigation shall notify in writing the other Party whose products may be subject to such investigation and invite the other Party for consultations with a view to finding a mutually acceptable solution. Consultations must be held as soon as possible but no later than 30 days from the date of receipt of the notification by the other Party, unless the Parties agree to a longer period. (5)
Article 8.2. Global Safeguard Measures
1. The Parties maintain their rights and obligations under Article XIX of GATT 1994 and the WTO Agreement on Safeguards (“Safeguards Agreement”).
2. Except as otherwise provided in paragraph 3, this Agreement does not confer additional rights or obligations on the Parties with regard to actions taken pursuant to Article XIX of GATT 1994 and the Safeguards Agreement.
3. A Party shall promptly notify the other Party of the initiation of any global safeguard investigation and the reasons for initiation. Such notification shall be made in no case later than 7 days upon such initiation.
Article 8.3. Anti-dumping Measures
1. The Parties maintain their rights and obligations regarding anti-dumping measures under Article VI of GATT 1994 and the WTO Agreement on Implementation of Article VI of the GATT 1994 (“AD Agreement”).
2. Except as otherwise provided in paragraph 3, this Agreement does not confer any additional rights or obligations on the Parties with regard to actions taken pursuant to Article VI of GATT 1994 and the AD Agreement with regard to the application of anti-dumping measures.
3. Pursuant to Article 5.5 of the AD Agreement, a Party that has received a properly documented application from an industry in its Area for the initiation of an anti-dumping investigation in respect of goods from the other Party shall, as soon as possible but no later than 7 days following receipt, give written notice to the other Party.
Chapter 9. GOVERNMENT PROCUREMENT
Article 9.1. Definitions
For the purposes of this Chapter:
entity means an entity listed in Annex 9.1;
government procurement or procurement means the process by which a government obtains the use of or acquires goods or services, or any combination thereof, for governmental purposes and not with a view to commercial sale or resale, or for use in the production or supply of goods or services for commercial sale or resale;
government procurement measure means any law, regulation, administrative guidance, practice, or procedure of general application relating to government procurement;
in writing or written means any worded or numbered expression that can be read, reproduced and later communicated. It may include electronically transmitted and stored information;
limited tendering means a procurement method whereby the procuring entity contacts a supplier or suppliers of its choice in accordance with Article 9.13.2;
open tendering means a procurement method whereby all interested suppliers may submit a tender;
publish means to disseminate information in an electronic or paper medium that is distributed widely and is readily accessible to the general public;
qualified supplier means a supplier that a procuring entity recognises as having satisfied the conditions for participation;
selective tendering means a procurement method whereby only qualified suppliers are invited by the procuring entity to submit a tender;
supplier means a person that provides or could provide goods or services to an entity; and
technical specification means a tendering requirement that:
(a) sets out the characteristics of:
(i) goods to be procured, such as quality, performance, safety and dimensions, or the processes and methods for their production; or
(ii) services to be procured, or the processes and methods for their provision;
(b) addresses terminology, symbols, packaging, marking or labeling requirements, as they apply to a good or service; or
(c) sets out conformity assessment procedures prescribed by an entity.
Article 9.2. Scope
1. This Chapter shall apply to any government procurement measure adopted or maintained by a Party relating to procurement by an entity:
(a) by any contractual means, including purchase, rental or lease, with or without an option to buy;
(b) for which the value, as estimated in accordance with Article 9.3, equals or exceeds the relevant threshold specified in Annex 9.2, at the time of the publication of a notice in accordance with Article 9.8; and
(c) subject to the provisions specified in Annex 9.1.6
2. This Chapter shall not apply to:
(a) the purchase or acquisition of goods and services by an entity of a Party from another entity of that Party, except where tenders are called, in which case this Chapter shall apply;
(b) non-contractual agreements or any form of assistance provided by a Party, including grants, loans, equity infusions, fiscal incentives, subsidies, guarantees, cooperative agreements and purchases for the direct purpose of providing foreign assistance;
(c) purchases funded by international grants, loans, or other assistance, where the provision of such assistance is subject to conditions inconsistent with this Chapter;
(d) the procurement or acquisition of fiscal agency or depository services, liquidation and management services for regulated financial institutions, or services related to the sale, redemption and distribution of public debt, including loans and government bonds, notes and other securities;
(e) hiring of government employees and related employment measures; and
(f) procurement conducted under the particular procedure or condition of an international agreement relating to the stationing of troops or relating to the joint implementation of a project where that international agreement applies to a Party.
3. Entities of each Party shall not prepare, design or otherwise structure or divide, at any stage of the procurement, any procurement in order to avoid the obligations of this Chapter.
Article 9.3. Valuation
In calculating the value of a contract for the purpose of ascertaining whether the procurement is covered by this Chapter, a procuring entity shall include the estimated maximum total value of the procurement over its entire duration, taking into account all forms of remuneration provided for in such contracts, including options, premiums, fees, commissions and interest.
Article 9.4. Exceptions
1. 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 either Party from adopting or maintaining 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, of philanthropic institutions or of prison labour.
2. The Parties understand that paragraph 1 (b) includes environmental measures necessary to protect human, animal or plant life or health.
3. Nothing in this Chapter shall be construed to prevent either Party from taking any action or not disclosing any information which 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 defense purposes.
Article 9.5. National Treatment and Non-Discrimination
1. With respect to any government procurement measure regarding procurement covered by this Chapter, each Party shall grant to goods, services and suppliers of the other Party treatment no less favourable than that accorded by it to domestic goods, services and suppliers.
2. With respect to any government procurement measure regarding procurement covered by this Chapter, neither Party shall allow its entities to:
(a) treat a locally established supplier less favourably than another locally established supplier on the basis of the degree of foreign affiliation to, or ownership by a person of, the other Party; or
(b) discriminate against a locally established supplier on the basis that the goods or services offered by that supplier are goods or services of the other Party.
3. A Party, including its entities, shall not consider, seek, or impose, at any stage of a procurement, conditions or measures used to encourage its development or improve the balance-of-payments accounts, such as the licensing of technology, investment requirements, counter-trade or other similar requirements.
4. Paragraphs 1 and 2 shall not apply to measures concerning customs duties and charges of any kind imposed on or in connection with importation, the method of levying such duties and charges, other import regulations, including restrictions and formalities, or measures affecting trade in services other than government procurement measures.
5. For the purposes of paragraphs 1 and 2, each Party shall apply to procurement covered by this Chapter the rules of origin that it applies in the normal course of trade.
Article 9.6. Non-Disclosure of Information
1. The Parties, their entities and review authorities shall not, except to the extent required by law, disclose confidential information that would prejudice legitimate commercial interests of a particular supplier or that might prejudice fair competition between suppliers without the written authorisation of the supplier that provided the information.
2. Nothing in this Chapter shall be construed as requiring either Party, its entities or review authorities to disclose confidential information the disclosure of which would impede law enforcement or otherwise be contrary to the public interest.
Article 9.7. Publication of Information on Procurement
Each Party shall promptly publish its procurement laws, regulations, procedures and administrative guidance of general application relating to procurements covered by this Chapter, and any changes or additions to this information.
Article 9.8. Notice of Intended Procurement
1. For each procurement covered by this Chapter, an entity shall publish in advance a notice of intended procurement inviting interested suppliers to submit tenders for that procurement, except as provided in Article 9.13.2. Each such notice shall be accessible during the entire period established for tendering for the relevant procurement.
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 entity issuing the notice, the address where suppliers may obtain all documents relating to the procurement, the time limits for submission of tenders, and the dates for delivery of the goods or services to be procured.
3. Each notice of intended procurement shall be published sufficiently in advance to provide interested suppliers with a reasonable period of time, in light of the nature, circumstances and complexity of the procurement, to obtain the full tender documentation and to prepare and submit responsive tenders by the closing date, or to apply for participation in the procurement where applicable.
4. The Parties agree that entities shall in no case provide less than 10 days between the date on which the notice of intended procurement is published and the final date for the submission of tenders or applications to participate.
Article 9.9. Conditions for Participation
1. Where an entity requires suppliers to register, qualify, or satisfy any other conditions before being permitted to participate in a procurement, each Party shall ensure that a notice is published inviting suppliers to apply for registration or qualification or to demonstrate satisfaction of other conditions for participation.
2. The notice shall be published sufficiently in advance for interested suppliers to prepare and submit responsive applications and for the entity to evaluate and make its determinations based on such applications.
3. Any conditions for participation in the procurement, including the legal, commercial, technical and financial capacity of suppliers, as well as the verification of qualifications, shall be limited to those which are essential to ensure the supplier’s capability to fulfil the contract in question.
4. The commercial, technical and financial capacity of a supplier shall be judged on the basis of both that supplier’s global business activity and its activity in the Area of the procuring entity, taking due account of the legal relationship between the supply organisations.
5. Entities shall consider for a particular procurement those suppliers of the other Party that request to participate in the procurement and that are not yet registered or qualified, provided there is sufficient time to complete the registration or qualification procedures within the time period allowed for the submission of tenders.
6. Nothing in this Article shall preclude an entity from excluding a supplier from a procurement on grounds such as bankruptcy, liquidation or insolvency, false declarations relating to a procurement, or significant deficiency in the performance of any obligation under a prior contract.
Article 9.10. Lists of Registered or Qualified Suppliers
1. Entities may establish for continuing use a list of suppliers registered or qualified to participate in procurements.
2. Entities shall publish annually or otherwise make available continuously in electronic form a notice inviting interested suppliers to apply for inclusion on the list.
3. Entities shall ensure that suppliers may apply for participation in the list at any time, and that all qualifying suppliers are included within a reasonable period, taking into account the conditions for participation and the need for verification.
4. Where entities require suppliers to qualify for such a list before being permitted to participate in a procurement, and a supplier that has not previously satisfied such requirements or conditions submits an application, the entity shall promptly start the registration or qualification process. The entity shall allow such supplier to participate in the procurement, provided there is sufficient time to complete the registration or procurement procedures within the time period allowed for the submission of tenders.
Article 9.11. Technical Specifications
1. Each Party shall ensure that its entities do not prepare, adopt or apply any technical specification with the purpose or the effect of creating unnecessary obstacles to trade between the Parties.
2. Any technical specifications prescribed by an entity shall, where appropriate:
(a) be specified in terms of performance and functional requirements, rather than design or descriptive characteristics; and
(b) be based on international standards, where applicable, or otherwise on national technical regulations, recognised national standards, or building codes.
3. Each Party shall ensure that its entities do not prescribe technical specifications that require or refer to a particular trademark or trade name, patent, design or type, specific origin or producer or supplier, unless there is no 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. Each Party shall ensure that its entities do not seek or accept, in a manner that would have the effect of prejudicing fair competition, advice to 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.
Article 9.12. Tender Documentation
1. Tender documentation provided to suppliers shall contain all information necessary to enable them to prepare and submit responsive tenders, including the essential requirements and evaluation criteria for the award of the procurement contract.
2. Where entities do not offer direct access to the tender documentation by electronic means, entities shall promptly make available the tender documentation at the request of any interested or, as applicable, qualified supplier.
3. Where an entity modifies the tender documentation, and that modification could impact on the preparation of tenders, it shall publish or transmit all such modifications in writing:
(a) to all suppliers who have requested tender documentation at the time the criteria are modified, and in the same manner as the original information was transmitted by the entity; and
(b) in adequate time to allow such suppliers to modify and resubmit their tenders, as appropriate.
Article 9.13. Tendering Procedures
1. Except as provided for in paragraph 2, entities shall award contracts by means of open or selective tendering procedures, in the course of which all interested suppliers or, in the case of selective tendering, suppliers invited to do so by an entity may submit a tender.
2. 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 the other Party or protects domestic suppliers, a procuring entity may use limited tendering procedures only under any of the following circumstances:
(a) where, in response to a prior notice, invitation to participate, or invitation to tender under open or selective tendering procedures:
(i) no tenders were submitted;
(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
provided that the essential requirements of the procurement as set out in the tender documentation have not been substantially modified;
(b) where, for works of art, or for reasons connected with the protection of exclusive rights, such as patents or copyrights, or where there is an absence of competition for technical reasons, the goods or services can be supplied only by a particular supplier and no reasonable alternative or substitute exists;
(c) for additional deliveries by the original supplier that are intended either as replacement parts, extensions, or continuing services for existing equipment, software, services or installations, where a change of supplier would compel the entity to procure goods or services not meeting requirements of interchangeability with existing equipment, software, services, or installations;
(d) for goods purchased on a commodity market;
(e) when an 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. When such contracts have been fulfilled, subsequent procurements of such goods or services shall be subject to this Chapter;
(f) when additional construction services, which were not included in the initial contract but which were within the objectives of the original tender documentation, have, due to unforeseeable circumstances, become necessary to complete the construction services described therein, provided that the total value of contracts awarded for additional construction services does not exceed 50 percent of the amount of the main contract;
(g) in so far as it is strictly necessary where, for reasons of extreme urgency brought about by events unforeseeable by the entity and beyond its control, the goods or services could not be obtained in time by means of an open or selective tendering procedure;
(h) for purchases made under exceptionally advantageous conditions that only arise in the very short term, including public auction or unusual disposals, such as those resulting from liquidation, bankruptcy or receivership. This subparagraph is not intended to cover routine purchases from regular suppliers; and
(i) in the case of a contract awarded to the winner of a design contest provided that the contest has been organised in a manner which is consistent with the principles of this Chapter and that the contest is judged by an independent jury with a view to a design contract being awarded to the winner.
3. An entity shall maintain a record or prepare a written report providing specific justification for any contract awarded by means other than open or selective tendering procedures, as provided in paragraph 2.
Article 9.14. Treatment of Tenders and Awarding of Contracts
1. An entity shall receive, open and treat all tenders under procedures that guarantee the fairness and impartiality of the procurement process.
2. To be considered for award of a contract, a tender must, at the time of opening by the entity, conform to the essential requirements of the notice of intended procurement or tender documentation and be submitted by a supplier who complies with the conditions for participation.
3. Unless an 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 whose tender is determined to be the most advantageous in terms of the requirements and evaluation criteria set out in the tender documentation, or where price is the sole criterion, the lowest price.
4. No entity may cancel a procurement, or terminate or modify awarded contracts, in order to avoid the obligations of this Chapter.
Article 9.15. Post-Award Information
1. Entities shall promptly inform suppliers that have submitted a tender of the contract award decision.