(a) treat a locally established supplier less favourably than another locally established supplier on the basis of the 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.
Use of Electronic Means
3. When conducting covered procurement, a procuring entity shall use electronic means:
(a) for the publication of notices; and
(b) to the widest extent practicable, for information exchange and communication, the publication of tender documentation and the submission of tenders.
4. When conducting covered procurement by electronic means (2), 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.
Conduct of Procurement
5. 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;
(b) avoids conflicts of interest; and
(c) prevents corrupt practices.
Rules of Origin
6. For purposes of covered procurement, a Party shall not apply rules of origin to goods or services imported from or supplied from the other Party that are different from the rules of origin the Party applies at the same time in the normal course of trade to imports or supplies of the same goods or services from the same Party.
Offsets
7. With regard to covered procurement, a Party, including its procuring entities, shall not seek, take account of, impose or enforce any offset at any stage of a procurement.
Make in India
8. Notwithstanding paragraphs 1, 2, and 7, India and its procuring entities shall be entitled to seek, take account of, impose, or enforce the MII Order at any stage of a covered procurement, provided that India and its procuring entities treat any supplier of the United Kingdom as a ‘Class-II local supplier’ under the MII Order where:
(a) that supplier offers goods or services having a country of origin as the United Kingdom; and
(b) the goods or services have equal to or greater than the minimum ‘local content’ prescribed for Class-II local suppliers in the MII Order where ‘local content’ means the amount of value added in the United Kingdom, which shall be the total value of the goods or service procured (excluding net domestic indirect taxes) minus the value of imported content in the goods or service (including all customs duties) as a proportion of the total value, expressed as a percentage. (3)
9. Nothing in this Article shall affect India’s right to amend or modify the MII Order provided that any such amendment or modification shall maintain treatment to suppliers of the United Kingdom in a manner at least equivalent to that described in paragraph 8.
Social Value
10. The United Kingdom and its procuring entities may take into account social considerations, including the social value of a procurement, at any stage of a covered procurement provided that:
(a) suppliers of India are treated no less favourably than suppliers of the United Kingdom when evaluating any social considerations;
(b) any social considerations are based on objectively verifiable criteria; and
(c) if self-certification of the contribution towards any social consideration by a supplier is permitted at any stage of a covered procurement, such self-certification shall apply to suppliers of India.
11. Nothing in this Article shall affect the United Kingdom’s right to amend or modify any of its procurement measures concerning social considerations, including social value, provided that any such amendment or modification shall maintain the treatment of suppliers of India in a manner at least equivalent to that described in paragraph 10.
Measures Not Specific to Procurement
12. Paragraphs 1 and 2 shall not apply to: 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 or formalities and measures affecting trade in services other than measures governing covered procurement.
Currency
13. For greater certainty, a procuring entity may, when calling for a tender, designate any currency.
Article 15.5. Information on the Procurement System
1. Each Party shall:
(a) promptly publish any law, regulation, judicial decision, administrative ruling of general application, standard contract clause mandated by law or regulation and incorporated by reference in notices or tender documentation and procedure regarding covered procurement, and any modifications thereof, in an officially designated electronic or paper medium that is widely disseminated and remains readily accessible to the public; and
(b) provide an explanation thereof to the other Party, on request.
2. Each Party shall list in Section I of its Schedule to Annex 15A (Government Procurement Schedules):
(a) the electronic or paper media in which the Party publishes the information described in paragraph 1;
(b) the electronic media in which the Party publishes the notices required by Article 15.6 (Notices), paragraph 8 of Article 15.8 (Qualification of Suppliers), and paragraph 2 of Article 15.16 (Transparency of Procurement Information); and
(c) if applicable, the electronic media where the Party publishes its procurement data pursuant to paragraph 6 of Article 15.16 (Transparency of Procurement Information).
3. Each Party shall promptly notify the other Party of any modification to the Party’s information listed in Section I of its Schedule to Annex 15A (Government Procurement Schedules).
Article 15.6. Notices
Electronic Publication of Procurement Notices
1. Notices of intended procurement and notices of planned procurement shall be directly accessible by electronic means, free of charge, through a single point of access, as listed in Section I of each Party’s Schedule to Annex 15A (Government Procurement Schedules).
Notice of Intended Procurement
2. For each covered procurement, a procuring entity shall publish a notice of intended procurement in the electronic medium listed in Annex 15A (Government Procurement Schedules), except in the circumstances described in Article 15.13 (Limited Tendering). The notice shall remain readily accessible to the public, at least until expiration of the time period indicated in the notice.
3. Unless otherwise provided in this Chapter, each notice of intended procurement shall include:
(a) information necessary to contact the procuring entity and obtain all relevant documents relating to the procurement, and their cost and terms of payment, if any;
(b) a description of the procurement, including the nature and the quantity of the goods or services to be procured or, where the quantity is not known, the estimated quantity;
(c) for recurring contracts, an estimate, if possible, of the timing of subsequent notices of intended procurement;
(d) a description of any options;
(e) the time frame for delivery of goods or services or the duration of the contract;
(f) the procurement method that will be used and whether it will involve negotiation (4) or electronic auction;
(g) where applicable, the address and any final date for the submission of requests for participation in the procurement;
(h) the address, which can be an electronic address, and the final date for the submission of tenders;
(i) the language or languages in which tenders or requests for participation may be submitted, if they may be submitted in a language other than an official language of the Party of the procuring entity;
(j) a list and brief description of any conditions for participation of suppliers, including any requirements for specific documents or certifications to be provided by suppliers in connection therewith, unless such requirements are included in tender documentation that is made available to all interested suppliers at the same time as the notice of intended procurement; and
(k) where, pursuant to Article 15.8 (Qualification of Suppliers), a procuring entity intends to select a limited number of qualified suppliers to be invited to tender, the criteria that will be used to select them, and where applicable, any limitation on the number of suppliers that will be permitted to tender.
Notice of Planned Procurement
4. Procuring entities are encouraged to publish in the electronic medium listed in Section I of its Party’s Schedule to Annex 15A (Government Procurement Schedules) as early as possible in each fiscal year a notice regarding their future procurement plans (hereinafter referred to as “notice of planned procurement”). The notice of planned procurement may 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 Section B or Section C of a Party’s Schedule to Annex 15A (Government Procurement Schedules) 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 15.7. Conditions for Participation
1. A procuring entity 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.
2. In establishing the conditions for participation, a procuring entity:
(a) 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 the Party or that the supplier has prior work experience in the territory of that Party;
(b) may require relevant prior experience where essential to meet the requirements of the procurement; and
(c) shall not exclude a supplier of the other Party from participating in a tendering procedure on the basis of a legal requirement according to which the supplier must be a natural person or a legal person.
3. In assessing whether a supplier satisfies the conditions for participation, a procuring entity shall:
(a) 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; and
(b) base its evaluation on the conditions that the procuring entity has specified in advance in notices or tender documentation.
4. Where there is supporting evidence, a Party, including its procuring entities, may exclude a supplier (5) on grounds such as:
(a) bankruptcy;
(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) professional misconduct or acts or omissions that adversely reflect on the commercial integrity of the supplier; or
(f) failure to pay taxes.
Article 15.8. Qualification of Suppliers
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 the other Party in its procurement.
3. If a Party or a procuring entity maintains a supplier registration system, it shall:
(a) ensure that interested suppliers have access to information on the registration system through electronic means and that interested suppliers may request registration at any time; and
(b) if a supplier makes a request to be listed on the registration system, give fair consideration to the request and inform the supplier within a reasonable period of time of the decision with respect to this request.
4. Each Party shall ensure that:
(a) its procuring entities make efforts to minimise differences in their qualification procedures; and
(b) where its procuring entities maintain registration systems, the entities make efforts to minimise differences in their registration systems.
Selective Tendering
5. Where a procuring entity intends to use selective tendering, the entity shall:
(a) include in the notice of intended procurement at least the information specified in subparagraphs 3(a), 3(b), 3(f), 3(g), 3(j), and 3(k) of Article 15.6 (Notices) and invite suppliers to submit a request for participation; and
(b) provide, by the commencement of the time period for tendering, at least the information in subparagraphs 3(c), 3(d), 3(e), 3(h), and 3(i) of Article 15.6 (Notices) to the qualified suppliers invited to submit a tender.
6. A procuring entity 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.
7. Where the tender documentation is not made publicly available from the date of publication of the notice referred to in paragraph 5, a procuring entity shall ensure that those documents are made available at the same time to all the qualified suppliers selected in accordance with paragraph 6.
Multi-Use Lists
8. A Party, including its procuring entities, may establish or maintain a multi-use list, provided that it makes continuously available in the electronic medium listed in Section I of its Schedule to Annex 15A (Government Procurement Schedules), a notice inviting interested suppliers to apply for inclusion on the list.
9. The notice provided for in paragraph 8 shall include:
(a) a description of the goods or services, or categories thereof, for which the list may be used;
(b) the conditions for participation to be satisfied by suppliers for inclusion on the list and the methods that the procuring entity or other government agency will use to verify that a supplier satisfies those conditions;
(c) the name and address of the procuring entity and other information necessary to contact the entity and obtain all relevant documents relating to the list; and
(d) the period of validity of the list and the means for its renewal or termination, or where the period of validity is not provided, an indication of the method by which notice will be given of the termination of use of the list.
10. A procuring entity shall allow suppliers to apply at any time for inclusion on a multi-use list and shall include on the list all qualified suppliers within a reasonably short time.
11. Where a supplier that is not included on a multi-use list submits a request for participation in a procurement based on a multi-use list and provides all required documents within the time period provided for the submission of such request for participation, a procuring entity shall examine the request. If the entity is not able to complete the examination of the request within the time period allowed for the submission of tenders, it may exclude the supplier from consideration in respect of the procurement.
Section B and Section C Entities
12. A procuring entity covered under Section B or Section C of a Party’s Schedule to Annex 15A (Government Procurement Schedules) may use a notice inviting suppliers to apply for inclusion on a multi-use list as a notice of intended procurement, provided that:
(a) the notice is published in accordance with paragraph 8 and includes the information required under paragraph 9, as much of the information required under paragraph 3 of Article 15.6 (Notices) as is available and a statement that it constitutes a notice of intended procurement or that only the suppliers on the multi‑use list will receive further notices of procurement covered by the multi-use list; and
(b) the entity promptly provides to suppliers that have expressed an interest in a given procurement to the entity, sufficient information to permit them to assess their interest in the procurement, including all remaining information required in paragraph 3 of Article 15.6 (Notices), to the extent such information is available.
13. A procuring entity covered under Section B or Section C of a Party’s Schedule to Annex 15A (Government Procurement Schedules) may allow a supplier that has applied for inclusion on a multi-use list in accordance with paragraph 12 to tender in a given procurement, where there is sufficient time for the procuring entity to examine whether the supplier satisfies the conditions for participation.
Information on Procuring Entity Decisions
14. A procuring entity or other entity of a Party shall promptly inform any supplier that submits a request for participation in a procurement or application for inclusion on a multi-use list of the procuring entity’s decision with respect to the request or application.
15. Where a procuring entity or other entity of a Party rejects a supplier’s request for participation in a procurement or application for inclusion on a multi-use list, ceases to recognise a supplier as qualified, or removes a supplier from a multi-use list, the entity shall promptly inform the supplier and, on request of the supplier, promptly provide the supplier with a written explanation of the reasons for its decision.
Article 15.9. Technical Specifications and Tender Documentation
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, or on national technical regulations, recognised national standards, or building codes. Where national standards are used in the technical specifications, a procuring entity shall indicate that it will accept tenders that satisfy standards equivalent to those national standards by including words such as ‘or equivalent’ in the tender documentation.
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 technical specifications that require or refer to a particular trademark or trade name, patent, copyright, design, 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 those 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, or 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 that information outside the territory of the Party.
Tender Documentation
8. A procuring entity shall make available to suppliers tender documentation that includes all information necessary to permit suppliers to prepare and submit responsive tenders. Unless already provided in the notice of intended procurement, such documentation shall include a complete description of:
(a) the procurement, including the nature and the quantity of the goods or services to be procured or, where the quantity is not known, the estimated quantity and any requirements to be fulfilled, including any technical specifications, conformity assessment certification, plans, drawings or instructional materials;
(b) any conditions for participation of suppliers, including a list of information and documents that suppliers are required to submit in connection with the conditions for participation;
(c) all evaluation criteria the entity will apply in the awarding of the contract, and, except where price is the sole criterion, the relative importance of such criteria;
(d) where the procuring entity will conduct the procurement by electronic means, any authentication and encryption requirements or other requirements related to the submission of information by electronic means;
(e) where the procuring entity will hold an electronic auction, the rules, including identification of the elements of the tender related to the evaluation criteria, on which the auction will be conducted;
(f) where there will be a public opening of tenders, the date, time and place for the opening and, if appropriate, the persons authorised to be present;
(g) any other terms or conditions, including terms of payment and any limitation on the means by which tenders may be submitted, such as whether on paper or by electronic means; and
(h) any dates for the delivery of goods or the supply of services.
9. In establishing any date for the delivery of goods or the supply of services being procured, a procuring entity shall take into account such factors as the complexity of the procurement, the extent of subcontracting anticipated and the realistic time required for production, de-stocking and transport of goods from the point of supply or for supply of services.
10. The evaluation criteria set out in the notice of intended procurement or tender documentation may include, among others, price and other cost factors, quality, technical merit, environmental characteristics and terms of delivery.
11. A procuring entity shall promptly:
(a) make available tender documentation to ensure that interested suppliers have sufficient time to submit responsive tenders;
(b) provide, upon request, the tender documentation to any interested supplier, if the same is not readily available electronically; and
(c) 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.
Modifications
12. Where, prior to the award of a contract, a procuring entity modifies the criteria or requirements set out in the notice of intended procurement or tender documentation provided to participating suppliers, or amends or reissues a notice or tender documentation, it shall transmit in writing all such modifications or 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, where such suppliers are known to the entity, and in all other cases, in the same manner as the original information was made available; and
(b) in adequate time to allow such suppliers to modify and re-submit amended tenders, as appropriate.
Preliminary Market Research and Engagement
13. 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. A procuring entity shall take appropriate steps to ensure that suppliers participating in such market research or engagement do not gain an unfair advantage over other interested suppliers.