Modifications
5. If, prior to the award of a contract, a procuring entity modifies the criteria or requirements set out in a notice of intended procurement or tender documentation provided to a participating supplier, or amends or reissues a notice or tender documentation, it shall transmit in writing all those modifications or the amended or re-issued notice or tender documentation:
(a) to all suppliers that are participating in the procurement at the time of the modification, amendment or re-issuance, if those suppliers are known to the procuring entity, and in all other cases, in the same manner as the original information was made available; and
(b) in adequate time to allow those suppliers to modify and re-submit their initial tenders, as appropriate.
Preliminary Market Research and Engagement
6. For greater certainty, a procuring entity may, prior to publication of a notice of intended procurement, conduct market research and engagement with suppliers with a view to informing and developing technical specifications and other tender documentation for a particular procurement or informing suppliers of its procurement plans and requirements. If suppliers participate in the market research or engagement, a procuring entity shall take appropriate steps to ensure that suppliers do not gain an unfair advantage over other interested suppliers.
Article 15.15. Time Periods
1. A procuring entity shall, consistent with its own reasonable needs, provide sufficient time for a supplier to prepare and submit a request for participation and a responsive tender, taking into account factors such as:
(a) the nature and complexity of the procurement;
(b) the extent of subcontracting anticipated; and
(c) whether tenders can be received by electronic means.
2. The time periods for procurement in each Party shall be in accordance with Section G of each Party’s Schedule set out in Annex 15A (Schedule of the Parties).
Article 15.16. Treatment of Tenders and Awarding of Contracts
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. If a procuring entity provides a supplier with an opportunity to correct unintentional errors of form between the opening of tenders and the awarding of the contract, the procuring entity shall provide the same opportunity to all participating suppliers.
Awarding of Contracts
4. To be considered for an award, a tender shall be submitted in writing and shall, at the time of opening, comply with the essential requirements set out in the notice and tender documentation and be submitted by a supplier who satisfies the conditions for participation.
5. Unless a procuring entity determines that it is not in the public interest to award a contract, it shall award the contract to the supplier that the procuring entity has determined to be fully capable of fulfilling the terms of the contract and that, based solely on the evaluation criteria specified in the notice and tender documentation, has submitted:
(a) the most advantageous tender; or
(b) if price is the sole criterion, the lowest price.
6. If 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.
7. A procuring entity shall not use options, cancel a covered procurement, or modify or terminate awarded contracts in a manner that circumvents the obligations of this Chapter.
Article 15.17. Transparency and Post-Award Information
Information Provided to Suppliers
1. A procuring entity shall promptly inform participating suppliers of the contract award decision and, on the request of a supplier, shall do so in writing. Subject to paragraphs 2 and 3 of Article 15.18 (Disclosure of Information), a procuring entity shall, on request, provide an unsuccessful supplier with an explanation of the reasons why the entity did not select its tender and the relative advantages of the successful supplier’s tender.
Publication of Award Information
2. No later than 72 days after the award of each contract covered by this Chapter, a procuring entity shall, in accordance with its regulations and procedures, publish a notice in an appropriate electronic medium listed in Annex 15A (Schedule of the Parties) and the information shall remain readily accessible for a reasonable period of time. The notice shall endeavour to include the following information to the extent which the capacity of the procuring entity allows:
(a) a description of the good or service procured;
(b) the name and address of the procuring entity;
(c) the name and 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 procurement method used, and in cases where limited tendering was used in accordance with Article 15.11 (Limited Tendering), a description of the circumstances justifying the use of limited tendering.
3. The Parties shall review the operation of paragraph 2 two years after the date of entry into force of this Agreement, and as may be agreed thereafter by the Parties.
Maintenance of Documentation, Reports and Electronic Traceability
4. Each procuring entity shall, for a period of at least three years from the date it awards a contract, maintain:
(a) the documentation and reports of tendering procedures and contract awards relating to covered procurement, including the reports required under Article 15.11 (Limited Tendering); and
(b) data that ensure the appropriate traceability of the conduct of covered procurement by electronic means.
Article 15.18. Disclosure of Information
Provision of Information to Parties
1. On request of the other Party, a Party shall promptly provide 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. In cases where release of the information would prejudice competition in future tenders, the Party that receives the information shall not disclose it to any supplier, except after consulting with, and obtaining the agreement of the Party that provided the information.
Non-Disclosure of Information
2. Notwithstanding any other provision of this Chapter, a Party, including its procuring entities, shall not, except to the extent required by law or with the written authorisation of the supplier that provided the information, disclose information that would prejudice a legitimate commercial interest of a particular supplier or that might prejudice fair competition between suppliers.
3. Nothing in this Chapter shall be construed to require a Party, including its procuring entities, authorities and review bodies, to disclose confidential information if that disclosure:
(a) would impede law enforcement;
(b) might prejudice fair competition between suppliers;
(c) would prejudice the legitimate commercial interests of particular persons, including the protection of intellectual property; or
(d) would otherwise be contrary to the public interest.
Article 15.19. Environmental, Social and Labour Considerations
A Party, including its procuring entities, may:
(a) take into account environmental, social and labour considerations throughout the procurement procedure, provided they are:
(i) based on objectively verifiable criteria;
(ii) non-discriminatory; and
(iii) indicated in the notice of intended procurement or tender documentation; and
(b) take appropriate measures to ensure compliance with its obligations in the fields of environmental, social and labour law, provided they are non- discriminatory.
Article 15.20. Ensuring Integrity In Procurement Practices
1. Each Party shall ensure that criminal or administrative measures exist to address corruption, fraud, and other illegal acts in its government procurement.
2. These measures may include procedures to render ineligible for, or exclude from, participation in the Party’s procurements, either indefinitely or for a stated period of time, suppliers that the Party has determined to have engaged in corrupt, fraudulent or other illegal acts in relation to government procurement in the Party’s territory. When applying those procedures, each Party, including its procuring entities:
(a) may consider the gravity of the supplier’s acts or omissions, and any remedial measures or mitigating factors; and
(b) shall treat a supplier of the other Party with due process, in accordance with its government procurement policies and frameworks.
3. 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 engaged in or having influence over a procurement.
4. Each Party may put in place policies or procedures that require successful suppliers to maintain and enforce appropriate measures, such as internal controls, business ethics, and compliance programmes, for preventing and detecting corruption, fraud, and other illegal acts, provided they are non- discriminatory.
Article 15.21. Domestic Review
1. Each Party shall maintain, establish or designate at least one impartial administrative or judicial authority (hereinafter referred to as a “review authority”) that is independent of its procuring entities to review, in a non-discriminatory, timely, transparent and effective manner, a challenge or complaint (hereinafter referred to as a “complaint”) by a supplier that there has been:
(a) a breach of this Chapter; or
(b) if the supplier does not have a right to directly challenge a breach of this Chapter under the law of a Party, a failure of a procuring entity to comply with the Party's measures implementing this Chapter;
arising in the context of a covered procurement, in which the supplier has, or had, an interest. The procedural rules for all complaints shall be in writing and made generally available.
2. In the event of a complaint by a supplier arising in the context of covered procurement in which the supplier has, or had, an interest that there has been a breach or a failure as referred to in paragraph 1, the Party of the procuring entity conducting the procurement shall encourage the procuring entity and the supplier to seek resolution of the complaint through consultations. The procuring entity shall accord impartial and timely consideration to the complaint in a manner that is not prejudicial to the supplier’s participation in ongoing or future procurement or to its right to seek corrective measures under the administrative or judicial review procedure. Each Party shall make information on its complaint mechanisms generally available.
3. Each supplier shall be allowed a sufficient period of time to prepare and submit a complaint from when the basis of the complaint became known or reasonably should have become known to the supplier.
4. If a body other than the review authority initially reviews a complaint, a Party shall ensure that the supplier may appeal the initial decision to the review authority that is independent of the procuring entity whose procurement is the subject of the complaint.
5 If the review authority has determined that there has been a breach or a failure as referred to in paragraph 1, a Party may limit compensation for the loss or damages suffered to either the costs reasonably incurred in the preparation of the tender or in bringing the complaint, or both.
6. Each Party shall ensure that if the review authority is not a court, its review procedures are conducted in accordance with the following procedures:
(a) a procuring entity shall respond in writing to a supplier’s complaint and provide all relevant documents to the review authority;
(b) a supplier that initiates a complaint shall be provided an opportunity to reply to the procuring entity’s response before the review authority takes a decision on the complaint;
(c) the participants shall have the right to be represented and accompanied;
(d) the participants shall have access to all proceedings;
(e) the participants shall have the right to request that the proceedings take place in public and that witnesses may be presented; and
(f) the review authority shall provide its decisions or recommendations on a supplier’s complaint in a timely manner, in writing, with an explanation of the basis for each decision or recommendation.
7. Each Party shall adopt or maintain procedures that provide for:
(a) prompt interim measures pending the resolution of a complaint to preserve the supplier's opportunity to participate in the procurement and to ensure that the procuring entities of the Party comply with its measures implementing this Chapter; and
(b) corrective action that may include compensation under paragraph 5.
The procedures may provide that overriding adverse consequences for the interests concerned, including the public interest, may be taken into account when deciding whether those measures should be applied. Just cause for not acting shall be provided in writing.
Article 15.22. Modifications and Rectifications to Annex
1. A Party shall notify any proposed modification or rectification (hereinafter referred to as a “modification”) to its Schedule in Annex 15A (Schedule of the Parties) by circulating a notice in writing to the other Party through the Joint Committee. A Party shall provide compensatory adjustments for a change in coverage if necessary to maintain a level of coverage comparable to the coverage that existed prior to the modification. The Party may include the offer of compensatory adjustment in its notice.
2. A Party is not required to provide compensatory adjustments to the other Party if the proposed modification concerns one of the following:
(a) a procuring entity over which the Party has effectively eliminated its control or influence in respect of covered procurement by that procuring entity; or
(b) rectifications of a purely formal nature and minor modifications to its Schedule to Annex 15A (Schedule of the Parties), such as:
(i) changes in the name of a procuring entity;
(ii) the merger of one or more procuring entities listed in its Schedule;
(iii) the separation of a procuring entity listed in its Schedule into two or more procuring entities that are all added to the procuring entities listed in the same Section of the Annex; or
(iv) changes in website references.
and the other Party does not object under paragraph 3 on the basis that the proposed modification does not concern subparagraph (a) or (b).]
3. If a Party considers that its rights under this Chapter are affected by a proposed modification that is notified under paragraph 1, it shall notify the other Party of any objection to the proposed modification within 45 days of the date of circulation of the notice.
4. If a Party objects to a proposed modification, including a modification regarding a procuring entity on the basis that government control or influence over the entity’s covered procurement has been effectively eliminated, that Party may request additional information, including information on the nature of any government control or influence, with a view to clarifying and reaching agreement on the proposed modification, including the procuring entity’s continued coverage under this Chapter. The modifying Party and the objecting Party shall make every attempt to resolve the objection through consultations. If the Parties are unable to resolve the objection through consultations, the objecting Party may make an appropriate compensatory adjustment to its coverage to maintain a level of coverage comparable to that existing prior to the modification.3
5. The Joint Committee may recommend modifications to Annex 15A.
Article 15.23. Facilitation of Participation by SMEs
1. The Parties recognise the important contribution that SMEs can make to economic growth and employment, and the importance of facilitating the participation of SMEs in government procurement.
2. If a Party maintains a measure that provides preferential treatment for SMEs, the Party shall ensure that the measure, including the criteria for eligibility, is transparent.
3. To facilitate participation by SMEs in covered procurement, each Party shall, to the extent possible and if appropriate:
(a) provide comprehensive procurement-related information that includes a definition of SMEs in a single electronic portal;
(b) make all tender documentation available free of charge;
(c) conduct procurement by electronic means or through other new information and communication technologies;
(d) consider the size, design, and structure of the procurement, including the use of subcontracting to SMEs;
(e) seek opportunities to simplify administrative processes; and
(f) require prompt payment by procuring entities, and that procuring entities encourage its use in subcontracting.
3 For greater certainty, the objecting Party shall not make a compensatory adjustment for the modifications described in paragraph 2.
Article 15.24. Financial Obligations
1. This Chapter does not entail any financial obligations to the Parties.
2. Each Party is responsible for any financial expenses required to fulfill their role in this Chapter.
Article 15.25. Cooperation
1. The Parties shall endeavour to cooperate on matters relating to government procurement, with a view to achieving a better understanding of each Party’s respective government procurement systems. Such cooperation may include:
(a) facilitating participation by suppliers in government procurement;
(b) sharing best practices with respect to SMEs;
(c) exchanging experiences and information, such as regulatory frameworks and best practices, including on the use and adoption of measures to promote environmental, social and labour considerations in government procurement;
(d) exchanging government procurement statistics and data;
(e) developing and expanding the use of electronic means in government procurement systems;
(f) institutional strengthening for the fulfilment of the provisions of this Chapter;
(g) encouraging greater participation by women in government procurement to the extent possible; and
(h) exchanging information relating to government procurement opportunities in each Party.
Article 15.26. Language
To improve market access to each Party’s procurement market, each Party shall, where possible, use the English language in its publication of materials or information pursuant to Article 15.6 (Publication of Procurement Information), including in the publications listed in Section H of each Party’s Schedule under Annex 15A (Schedule of the Parties).
Article 15.27. Further Negotiations
Each Party shall, on request of the other Party, afford adequate opportunity to enter into negotiations with a view to extending new advantageous treatment to the other Party on a reciprocal basis when the Party agrees to any additional advantageous treatment or access to its government procurement market in an agreement with a non-Party, or non-Parties to this Agreement.
Article 15.28. Notifications
If a Party makes any changes to its laws and regulations relevant to this Chapter which could significantly impact the commitments to the other Party, that Party shall inform the other Party in writing with the details of the changes in a timely manner. If requested by either Party, consultations shall be conducted in a timely manner to discuss the impact of the changes on the commitments made under this Chapter.
Chapter 16. SMALL AND MEDIUM-SIZED ENTERPRISES
Article 16.1. General Principles
1. The Parties, recognising the fundamental role of SMEs in maintaining dynamism and enhancing competitiveness of their respective economies, shall foster close cooperation between SMEs of the Parties and cooperate in promoting jobs and growth in SMEs.
2. The Parties recognise the integral role of the private sector in the SME cooperation to be implemented under this Chapter.
3. The Parties recognise the importance of current initiatives on SMEs developed in relevant international fora, and in taking into account their findings and recommendations, where appropriate.
4. The Parties recognise the importance of SMEs owned or led by under-represented groups, such as women, youth, First Nations, persons with a disability and minority groups, participating in international trade.
Article 16.2. Cooperation to Increase Trade and Investment Opportunities for SMEs
1. The Parties acknowledge the importance of cooperating to achieve progress in reducing barriers to SMEs’ access to international markets.
2. The Parties may undertake activities to strengthen cooperation under this Chapter including:
(a) identifying ways to assist SMEs of the Parties to take advantage of the commercial opportunities under this Agreement;
(b) exchanging and discussing each Party’s experiences and best practices in supporting and assisting SMEs with respect to, among other things:
(i) training programmes;
(ii) trade education;
(iii) trade finance;
(iv) identifying commercial partners in the other Party;
(v) establishing good business credentials;
(vi) payment practices in the other Party’s market; and
(vii) small business support infrastructure, including dedicated SME centres, incubators and accelerators, export assistance centres and other centres as appropriate;
(c) facilitating the development of programmes to assist SMEs to participate in and integrate effectively into global markets and supply chains;
(d) identifying non-tariff barriers that adversely affect trade outcomes for SMEs and considering ways to minimise these barriers;
(e) exchanging information relating to the participation of SMEs in digital trade and e-commerce, with a view to assisting SMEs to take advantage of opportunities resulting from this Agreement; and
(f) considering any other matter pertaining to SMEs, including any issues raised by SMEs regarding their ability to benefit from this Agreement.
3. In carrying out any activities or programmes pursuant to paragraph 2, the Parties may seek to collaborate with experts, international organisations, or the private sector, as appropriate.