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. Each Party shall endeavour to facilitate participation by SMEs in covered procurement, and shall to the extent possible and 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 dividing procurement opportunities into smaller lots and promoting the use of joint bidding and subcontracting by SMEs;
(e) seek opportunities to simplify administrative processes; and
(f) require prompt payment by procuring entities to their suppliers and by suppliers to their subcontractors.
3. If a Party adopts or maintains a measure that provides preferential treatment for SMEs, the Party shall ensure that the measure, including the criteria for eligibility, is transparent.
4. The Parties shall:
(a) upon request, provide information on the measures designed to assist, promote, encourage, or facilitate participation by SMEs in government procurement covered by this Chapter; and
(b) cooperate and share best practice in relation to measures to facilitate participation by SMEs in government procurement covered by this Chapter.
Article 15.11. 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 responsive tender, taking into account factors such as:
(a) the nature and complexity of the procurement;
(b) the extent of subcontracting anticipated; and
(c) the time necessary for transmitting tenders by non-electronic means from foreign as well as domestic points where electronic means are not used.
Such time periods, including any extension of the time periods, shall be the same for all interested or participating suppliers.
Deadlines
2. The time period for the submission of requests for participation and tenders shall be established by a procuring entity of a Party in accordance with the law of that Party, provided those time periods are established in a manner consistent with paragraph 1 and in accordance with the other provisions of this Chapter. For procuring entities of the United Kingdom, such time periods may be established in accordance with paragraphs 3 through 8. For greater certainty, paragraphs 3 through 8 shall not apply to procuring entities of India.
3. A procuring entity that uses selective tendering may establish that the final date for the submission of requests for participation may not, in principle, be less than 25 days from the date of publication of the notice of intended procurement. Where a state of urgency duly substantiated by the procuring entity renders this time period impracticable, the time period may be reduced.
4. Except as provided for in paragraphs 5 through 8, a procuring entity may establish that the final date for the submission of tenders may not be less than 40 days from the date on which:
(a) in the case of open tendering, the notice of intended procurement is published; or
(b) in the case of selective tendering, the entity notifies suppliers that they will be invited to submit tenders, whether or not it uses a multi-use list.
5. A procuring entity may reduce the time period for tendering established in accordance with paragraph 4 where:
(a) the procuring entity has published a notice of planned procurement as described in paragraph 4 of Article 15.6 (Notices) at least 40 days and no more than 12 months in advance of the publication of the notice of intended procurement, and the notice of planned procurement contains:
(i) a description of the procurement;
(ii) the approximate final dates for the submission of tenders or requests for participation;
(iii) a statement that interested suppliers should express their interest in the procurement to the procuring entity;
(iv) the address from which documents relating to the procurement may be obtained; and
(v) as much of the information that is required for the notice of intended procurement under paragraph 3 of Article 15.6 (Notices), as is available;
(b) the procuring entity, for recurring contracts, indicates in an initial notice of intended procurement that subsequent notices will provide time periods for tendering based on this paragraph; or
(c) a state of urgency duly substantiated by the procuring entity renders the time period for tendering established in accordance with paragraph 4 impracticable.
6. A procuring entity may reduce the time period for tendering established in accordance with paragraph 4 by five days for each one of the following circumstances:
(a) the notice of intended procurement is published by electronic means;
(b) all the tender documentation is made available by electronic means from the date of the publication of the notice of intended procurement; and
(c) the procuring entity accepts tenders by electronic means.
7. Notwithstanding any other provision in this Article, where a procuring entity purchases commercial goods or services, or any combination thereof, it may reduce the time period for tendering established in accordance with paragraph 4, provided that it publishes by electronic means, at the same time, both the notice of intended procurement and the tender documentation. In addition, where the entity accepts tenders for commercial goods or services by electronic means, it may reduce the time period established in accordance with paragraph 4.
8. Where a procuring entity covered under Section B or Section C of the UK’s Schedule to Annex 15A (Government Procurement Schedules) has selected all or a limited number of qualified suppliers, the time period for tendering may be fixed by mutual agreement between the procuring entity and the selected suppliers.
Article 15.12. Negotiation
1. A Party may provide for its procuring entities to conduct negotiations:
(a) where the entity has indicated its intent to conduct negotiations in the notice of intended procurement required under paragraph 2 of Article 15.6 (Notices);
(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 of intended procurement or tender documentation; or
(c) where the procuring entity finds that the price quoted by the supplier submitting the most advantageous tender is not reasonable and justifiable and that negotiations need to be conducted with such supplier.
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 of intended procurement or tender documentation; and
(b) where negotiations are concluded with more than one supplier, provide a common deadline for all those suppliers to submit any new or revised tenders.
Article 15.13. 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 the other Party or protects domestic suppliers, a procuring entity may use limited tendering and may choose not to apply Articles 15.6 (Notices) through 15.8 (Qualification of Suppliers), paragraphs 8 through 12 of Article 15.9 (Technical Specifications and Tender Documentation), and Articles 15.11 (Time Periods), 15.12 (Negotiations), 15.14 (Electronic Auctions), and 15.15 (Treatment of Tenders and Awarding of Contracts) only under any of the following circumstances:
(a) where:
(i) no tenders were submitted or no suppliers 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,
provided that the requirements of the tender documentation are not substantially modified;
(b) where the goods or services can be supplied only by a particular supplier or suppliers 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 or services that were not included in the initial procurement where a change of supplier for such additional goods or 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 for the procuring entity;
(d) insofar as is 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 open tendering or selective tendering;
(e) for goods purchased on a commodity market;
(f) 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. Original development of a first good or service may include limited production or supply in order to incorporate the results of field testing and to demonstrate that the good or service is suitable for production or supply in quantity to acceptable quality standards, but does not include quantity production or supply to establish commercial viability or to recover research and development costs;
(g) 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
(h) 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; and
(ii) the contest is judged by an independent jury with a view to award a design contract to the winner.
2. For each contract awarded in accordance with paragraph 1, a procuring entity shall maintain a record that includes the name of the procuring entity, the value and kind of good or service procured, and a statement that indicates the circumstances and conditions described in paragraph 1 that justified the use of limited tendering.
Article 15.14. Electronic Auctions
Where a procuring entity intends to conduct a covered procurement using an electronic auction, the entity 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 reranking 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 15.15. 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. Where 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 not deny a similar opportunity to 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 notices and tender documentation and be from a supplier that satisfies the conditions for participation.
5. 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 the entity 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.
6. 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. If the procuring entity determines that the bidder substantially failed to demonstrate its capability to deliver the contract at the offered price, the procuring entity may reject the tender.
7. A procuring entity shall not use options, cancel a procurement, or modify awarded contracts in a manner that circumvents the obligations under this Chapter.
Article 15.16. Transparency of Procurement Information
Information Provided to Suppliers
1. A procuring entity shall promptly inform participating suppliers of the entity’s contract award decisions 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 publish in the appropriate electronic medium listed in Section I of its Party’s Schedule to Annex 15A (Government Procurement Schedules) at least the following information, which shall remain readily accessible for a reasonable period of time:
(a) a description of the goods or services 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 type of procurement method used.
3. The Parties shall use best endeavours to ensure that:
(a) the description in subparagraph 2(a) includes a classification code of the goods or services procured, such as CPV; and
(b) in cases where limited tendering was used in accordance with Article 15.13 (Limited Tendering), the information in subparagraph 2(f) includes a description of the circumstances justifying the use of limited tendering.
Maintenance of Documentation, Records, 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 records of tendering procedures and contract awards relating to covered procurement, including the records required under Article 15.13 (Limited Tendering); and
(b) data that ensure the appropriate traceability of the conduct of covered procurement by electronic means.
Access to Procurement Data
5. Each Party shall collect and report to the Working Group on Government Procurement statistics on its contracts covered by this Chapter. Each report shall cover a period of one year and be submitted within two years of the end of the reporting period, and shall contain:
(a) for procuring entities covered in Section A of the Party’s Schedule to Annex 15A (Government Procurement Schedules):
(i) the number and total value, for all those procuring entities, of all contracts covered by this Chapter;
(ii) the number and total value of all contracts covered by this Chapter awarded by each procuring entity. For reports provided to the Working Group on Government Procurement after the first and second reports after the entry into force of this Agreement, such information shall be broken down by categories of goods and services according to an internationally recognised uniform classification system; and
(iii) the number and total value of all contracts covered by this Chapter awarded by each entity under limited tendering;
(b) for procuring entities covered in Section B and Section C of the Party’s Schedule to Annex 15A (Government Procurement Schedules), the number and total value of contracts covered by this Chapter awarded by all those entities, broken down by Section; and
(c) estimates for the data required under subparagraphs (a) and (b), with an explanation of the methodology used to develop the estimates, if it is not feasible to provide the data.
6. If a Party publishes its statistics on an official website, in a manner that is consistent with the requirements of paragraph 5, the Party may, instead of reporting to the Working Group on Government Procurement, provide a link to the website, together with any instructions necessary to access and use those statistics.
7. If a Party publishes the information under paragraph 3 in addition to the information under paragraph 2, and if that Party makes the information under paragraphs 2 and 3 accessible to the public through a single electronic database in a form permitting analysis of the information, the Party may, instead of reporting to the Working Group on Government Procurement, provide a link to the database, together with any instructions necessary to access and use that information.
Article 15.17. Ensuring Integrity In Procurement Practices
1. Each Party shall ensure that criminal or administrative measures exist that can address corruption, fraud, and other illegal acts in its 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. When applying such 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 provide a supplier of the other Party directly implicated:
(i) reasonable opportunity to present facts and arguments in support of its position prior to the decision to render ineligible for, or exclude from, participation being made; and
(ii) notice that such a decision has been made and the reasons for the decision.
3. Each Party shall ensure that it has in place policies or procedures to eliminate to the extent possible or manage potential conflicts 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.
Article 15.18. Disclosure of Information
Provision of Information
1. On request of the other 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. 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 provide to any particular supplier information 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 where 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. Domestic Review Procedures
1. Each Party shall provide a timely, effective, transparent, and non-discriminatory administrative or judicial review procedure through which a supplier may challenge:
(a) a breach of this Chapter; or
(b) where the supplier does not have a right to challenge directly a breach of the Chapter under the domestic law of a Party, a failure to comply with a Party’s measures implementing this Chapter,
arising in the context of a covered procurement, in which the supplier has, or has had, an interest. The procedural rules for all challenges 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 has 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 entity and the supplier to seek resolution of the complaint through consultations. The entity shall accord impartial and timely consideration to any such complaint in a manner that is not prejudicial to the supplier’s participation in ongoing or future procurement or its right to seek corrective measures under the administrative or judicial review procedure.
3. Each supplier shall be allowed a sufficient period of time to prepare and submit a challenge, which in no case shall be less than 10 days from the time when the basis of the challenge became known or reasonably should have become known to the supplier.
4. Each Party shall establish or designate at least one impartial administrative or judicial authority that is independent of its procuring entities to receive and review a challenge by a supplier arising in the context of a covered procurement.
5. Where a body other than an authority referred to in paragraph 4 initially reviews a challenge, the Party shall ensure that the supplier may appeal the initial decision to an impartial administrative or judicial authority that is independent of the procuring entity whose procurement is the subject of the challenge.
6. Each Party shall ensure that a review body that is not a court shall have its decision subject to judicial review or have procedures that provide that:
(a) the procuring entity shall respond in writing to the challenge and disclose all relevant documents to the review body;
(b) the participants to the proceedings shall have the right to be heard prior to a decision of the review body being made on the challenge;
(c) the participants to the proceedings shall have the right to be represented and accompanied;
(d) the participants to the proceedings shall have access to all proceedings;
(e) the participants to the proceedings shall have the right to request that the proceedings take place in public and that witnesses may be presented; and
(f) the review body shall make its decisions or recommendations in a timely fashion, in writing, and shall include an explanation of the basis for each decision or recommendation.