(c) for which the value of the covered procurement, as estimated in accordance with paragraph 4, equals or exceeds the value of the corresponding threshold stipulated in Annex 17.1;
(d) carried out by a contracting entity, and
(e) not expressly excluded from the scope of this Chapter; and subject to the conditions specified in Annex 17.1.
3. This Chapter shall not apply to:
(a) non-contractual arrangements or any form of assistance that a Party, including its contracting entities, provides, including cooperation agreements, grants, loans, subsidies, capital transfers, guarantees and tax incentives;
(b) the contracting or procurement of fiscal agency services or depository services, settlement and administration services for regulated financial institutions, or services related to the sale, redemption, and distribution of public debt, including government loans and bonds and other securities. For greater certainty, this Chapter does not apply to the procurement of banking, financial or specialized services relating to the following activities:
(i) public debt; or
(ii) public debt management.
(c) procurement financed by grants, loans or other forms of international assistance, including development aid;
(d) hiring of public employees and employment-related measures;
(e) procurement by a governmental entity or enterprise from another governmental entity or enterprise of that Party;
(f) the acquisition or lease of land, existing real estate or other real property or tights thereon;
(g) purchases made under exceptionally favorable conditions that only occur for a very short period of time, such as extraordinary disposals made by companies that are not normally suppliers or the disposal of assets of companies in liquidation or under judicial administration. For the purposes of this subparagraph, the provisions of paragraph 3 of article 17.12 shall apply; and
(h) contracts entered into for the specific purpose of providing assistance to foreign countries.
4. When calculating the value of a procurement for the purpose of determining whether it is a covered procurement, the procuring entity:
(a) shall not divide a procurement into separate procurements, or use a particular method for estimating the value of the procurement for the purpose of evading the application of this Chapter;
(b) shall take into account all forms of remuneration, including premiums, fees, dues, fees, commissions, interest, other revenue streams that may be stipulated in the procurement, and where the procurement provides for the possibility of option clauses, the total maximum value of the procurement, including optional purchases; and
(c) shall, where the procurement is to be conducted in multiple parts, and results in the award of contracts at the same time or over a given period to one or more suppliers, base its calculation on an estimate of the total maximum value of the procurement over the entire period of the procurement.
5. No procuring entity may prepare, design, structure or divide a public procurement for the purpose of evading the obligations of this Chapter.
6. Nothing in this Chapter shall prevent a Party from developing new procurement policies, procedures or contractual means, provided that they are consistent with this Chapter.
Article 17.2. Safety and General Exceptions
1. Nothing in this Chapter shall be construed to prevent a Party from taking any action or refraining from disclosing any information deemed necessary for the protection of its essential national security interests or for national defense.
2. Nothing in this Chapter shall be construed to prevent a Party from adopting or maintaining the 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) related to the goods or services of disabled persons, charitable institutions or prison labor, provided that such measures are not applied in a discriminatory manner or constitute a disguised restriction on trade.
3. The Parties understand that subparagraph 2(b) includes environmental measures necessary to protect human, animal or plant life or health.
Article 17.3. General Principles
National Treatment and Non-Discrimination
1. With respect to any measure covered by this Chapter, each Party shall accord immediately and unconditionally to goods and services of the other Party, and to suppliers of the other Party offering such goods or services, treatment no less favorable than the most favorable treatment accorded by that Party to its own goods, services, and suppliers, subject to the limitations and reservations set out in this Chapter and in Annex 17.1.
2. With respect to any measure covered by this Chapter, a Party may not:
(a) treat a locally established supplier less favorably than another locally established supplier because of its 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 Media
3. When covered procurement is conducted through electronic means, a procuring entity shall:
(a) ensuring that procurement is conducted using information technology and software, including those related to authentication and cryptographic encryption of information, that are generally accessible and interoperable with other accessible information technology systems and software; and
(b) maintain mechanisms to ensure the integrity of requests for participation and bids, including determining the time receipt and preventing inappropriate access.
Execution of Public Procurement
4. A procuring entity shall conduct covered procurement in a transparent and impartial manner, such that:
(a) is consistent with this Chapter,
(b) avoid conflicts of interest; and
(c) prevent cormpt practices. Rules of Origin 5. Each Party shall apply to covered procurement of goods or services imported from or supplied by the other Party, the rules of origin that it applies in the normal course of trade in such goods or services.
Special Compensatory Conditions
6. A procuring entity shall not seck, consider, impose or use special countervailing terms and conditions at any stage of a covered procurement.
Non-Specific Measures for Public Procurement
7. Paragraphs 1 and 2 shall not apply to customs duties and charges of any kind imposed on or in connection with importation; to the method of levying such duties and charges, other import regulations or formalities; or to measures affecting trade in services, other than measures governing covered procurement.
Article 17.4. Use of Electronic Means In Public Contracting
1. The Parties recognize the need and importance of the use of electronic means for the dissemination of information relating to covered procurement.
2. In order to facilitate business opportunities for suppliers of the other under this Chapter, each Party shall maintain or make best efforts to adopt an electronic single point of entry for the purpose of allowing access to complete information on procurement opportunities in its territory, as well as on procurement-related measures, especially those set out in Article 17.5 and Articles 17.6(1) and (3), 17.8(7), and. 17.13(2).
Article 17.5. Publication of Procurement Information
Each Part:
(a) publish in a timely manner all regulations of general application with respect to covered procurement, and any amendments to such regulations, in a publicly accessible electronic medium listed in Annex 17.1; and
(b) at the request of the other Party, provide an explanation concerning such information.
Article 17.6. Publication of Notices
Notice of Future Hire
1. For each covered procurement, a procuring entity shall publish in a timely manner a notice inviting suppliers to submit tenders, or where appropriate, an application to participate in the procurement, except in the circumstances described paragraph 2 of Article 17.2. Such notice shall be published in an electronic medium that is readily accessible to the public, and each such notice shall be publicly accessible for the full tendering period for the respective procurement.
2. Future recruitment will include:
(a) the description of future public procurement;
(b) the procurement procedure to be used;
(c) any conditions that suppliers must satisfy in order to participate in public procurement;
(d) the name of the contracting entity publishing the notice;
(e) the address and point of contact where suppliers can obtain all relevant procurement documentation;
(f) where applicable, the address and final date for the submission of requests for participation in the procurement;
(g) the address and final date for submission of bids; and
(h) the delivery dates of the goods or services to be contracted or the duration of the contract.
Notice of Hiring Plans
3. Each Party shall encourage its procuring entities to publish in an electronic medium, as early as practicable in each fiscal year, a notice regarding its future procurement plans. Such notices shall include the subject matter or category of goods and services to be procured and the estimated period in which the procurement will be conducted.
Article 17.7. Conditions for Participation
1. Where a Party requires suppliers to comply with registration, qualification or any other requirement or condition of participation in a procurement, the procuring entity shall publish the notice sufficiently in advance to allow interested suppliers sufficient time to prepare and submit their applications and for the procuring entity to evaluate and make its determinations on the basis of such applications.
2. At the time of establishing the conditions of participation, a procuring entity:
(a) shall limit these conditions to those that are essential to ensure that the supplier possesses the legal and financial capabilities, and the commercial and technical skills, to meet the requirements and technical specifications of the procurement on the basis of the supplier's business activities conducted both within and outside the territory the Party of the procuring entity;
(b) base its decision solely on the terms and conditions that the procuring entity has specified in advance in the procurement documents or notices;
(c) shall not make it a condition of participation in a procurement or the award of a procurement contract that the supplier has previously been awarded one or more procurement contracts by a procuring entity of the Party concerned;
(d) may require prior relevant experience when essential to meet the requirements of the procurement; and
(e) shall allow all domestic suppliers and suppliers of the other Party that have satisfied the conditions for participation to be recognized as qualified and to participate in the procurement.
3. Where there is evidence to justify it, a Party, including its procuring entities, may exclude a supplier from a procurement on grounds such as:
(a) bankruptcy; (b) false statements;
(c) significant or persistent deficiencies in the fulfillment of any substantive requirement or obligation arising from one or more previous contracts;
(d) final sentences for felonies or other serious offenses;
(e) professional misconduct or acts or omissions that call into question the business integrity of the supplier; or
(f) non-payment of taxes.
4. Procuring entities shall not adopt or apply a risk system or qualification procedure for the purpose of creating unnecessary obstacles to the participation of suppliers of the other Party in their respective procurement.
5. The process of, and the time required for, registration and qualification of suppliers shall not be used to exclude suppliers of the other Party from being considered for a particular procurement.
6. A procuring entity shall promptly inform any supplier that has applied for qualification of its decision with respect to that application. Where a procuring entity rejects an application for qualification or ceases to recognize a supplier as one that meets the conditions for participation, the procuring entity shall promptly inform the supplier, and upon request, provide the supplier with a timely written explanation of the reasons for the entity's decision.
Article 17.8. Procurement Documents
A procuring entity shall provide in a timely manner to suppliers interested in participating in a procurement, procurement documents that include all information necessary to enable them to prepare and submit responsive tenders, in accordance with Section J of Annex 17.1. Where a procuring entity does not publish the procurement documents by electronic means accessible to all interested suppliers, it shall, upon request of any supplier, make the documents promptly available in written form.
Article 17.9. Technical Specifications
1. A contracting entity shall not prepare, adopt or apply any technical specification or require any conformity assessment procedure that has the purpose or effect of creating unnecessary obstacles to trade between the Parties.
2. In establishing any technical specifications for the goods or services to be procured, a procuring entity shall, where appropriate:
(a) state the technical specification in terms of performance and functional requirements, rather than descriptive or design characteristics; and
(b) base the technical specification on international standards, where applicable, or otherwise on national technical regulations, recognized national standards or building codes.
3. 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 such cases, expressions such as "or equivalent" shall also be included in the procurement documents.
4. A procuring entity shall not solicit or accept, in a manner that may have the of precluding competition, advice that could be used in preparing or adopting any technical specification for a specific procurement from any person that may have a commercial interest in that procurement.
5. For greater certainty, this article is not intended to prevent a contracting entity from preparing, adopting or applying technical specifications to promote the conservation of natural resources or protect the environment.
Article 17.10. Modifications
When, in the course of a covered procurement, a procuring entity modifies the criteria or technical requirements set forth in a notice or procurement document provided to participating suppliers, or modifies a notice or procurement document, it shall transmit such modifications in writing:
(a) to all suppliers that are participating at the time of the modification of the information, if the identification of such suppliers is known, and in all other cases, in the same manner as the original information was transmitted; and
(b) with sufficient time to allow suppliers to modify and resubmit their corrected bids, as appropriate.
Article 17.11. Deadlines
1. A procuring entity shall, in a manner consistent with its own needs, provide suppliers with sufficient time to submit applications to participate in a procurement and to prepare and submit suitable tenders, taking into account the nature and complexity of the procurement. A procuring entity shall allow a period of not less than 30 days from the date on which the notice of intended procurement is published and the final date for submission of tenders.
2. Notwithstanding the provisions of paragraph 1, a procuring entity may establish a period of less than 30 days, but in no case less than 10 days, in the following circumstances:
(a) where the procuring entity has published a notice containing a description of the procurement, the approximate time limits for submission of tenders, or where appropriate, conditions for participation in a procurement and the address where documentation relating to the procurement may be obtained, at least 30 days and not more than 12 months in advance;
(b) in the case of a new, second or subsequent publication of notices for a public procurement of a recurring nature;
(c) when an emergency situation duly justified by a procuring entity makes it impracticable to meet the deadline stipulated in paragraph 1; or
(d) when the procuring entity purchases commercial goods or services (1).
3. A Party may provide that a procuring entity may reduce the deadline for submission of tenders set forth in paragraph 1 by 5 days for each of the following circumstances:
(a) when the notice of intended procurement is published by electronic means;
(b) when all documents that are made available to the public by electronic means are published as of the date of publication of the notice of intended procurement; and/or
(c) when the bids can be received by electronic means by the contracting entity.
The use of this paragraph, in conjunction with paragraph 2, may not result reducing bidding deadlines set forth in paragraph 1 to less than 10 days from the date of publication of the notice of intended procurement.
Article 17.12. Contracting Procedures
Open Bidding
1. A procuring entity shall award its contracts through open tendering procedures, except as provided in paragraph 2 of this Article.
Restricted Bidding
2. Provided that this provision is not used to prevent competition among suppliers or in a manner that discriminates against suppliers of the other, or protects domestic suppliers, a procuring entity may use other procurement procedures only in the following circumstances:
(a) provided that the requirements of the procurement documents are not substantially modified, when:
(i) no bid was submitted or no supplier has requested to participate;
(ii) no bid meeting the essential requirements of the bidding documents was submitted;
(iii) no supplier complied with the conditions of participation; or
(iv) there has been collusion in the submission of bids.
(b) when the goods or services can be supplied only by a particular supplier and there is no reasonable alternative or substitute goods or service due to any of the following reasons:
(i) the requirement is for the realization of a work of art;
(ii) the protection of patents, copyrights or other exclusive intellectual property rights; or
(iii) due to the absence of competition for technical reasons, as in case of intuitu personae service contracting;
(c) for additional deliveries or services from the initial supplier of goods or services that were not included in the initial procurement, when the change of supplier of such additional goods or services (2):
(i) it is unable to do so for economic or technical reasons such as interchangeability or compatibility requirements with existing equipment, software, services or facilities that were the subject of the initial procurement; and
(ii) would cause significant inconvenience or substantial duplication of costs to the procuring entity;
(d) to the extent strictly necessary, when, for reasons of extreme urgency (3) occasioned by events unforeseen by the procuring entity as provided for in the domestic law of each Party, the goods or services cannot be obtained in a timely manner through open or selective competitive bidding, and the use of such procedures would result in serious prejudice to the procuring entity;
(e) for the award of goods made in a commodities market;
(f) when a procuring entity procures a prototype or first commodity in limited quantity or contracts for a service that is developed upon request in the course of, and. for, a particular contract for research, experiment, study or original development; or
(g) when a contract is awarded to the winner of a design competition, provided that:
(i) the competition has been organized in a manner that is consistent with the principles of this Chapter, in particular with respect to the publication of the notice of intended procurement; and
(ii) the participants are rated or evaluated by an independent jury or body with a view to the conclusion of a design contract that is awarded to a winner.
3. A procuring entity shall maintain records or prepare a written report for each procurement contract awarded under paragraph 2, in a manner consistent with paragraph 3 of Article 17.13. Where a Party prepares written reports in accordance with this paragraph, they shall include the name of the procuring entity, the value and nature of the goods or services procured, and a justification indicating the circumstances and conditions described in paragraph 2 that justify the use of other procurement procedures. Where a Party maintains records, the records shall indicate the circumstances and conditions described in paragraph 2 that justify the use of alternative procurement procedures.
Article 17.13. Electronic Auctions
1. Where a procuring entity intends to conduct a covered procurement using an electronic auction, the procuring entity shall provide each participant, before the electronic auction commences, with the following information:
(a) the automatic evaluation method, including the mathematical formula, that is based on the evaluation criteria set forth in the procurement documents and that will be used in the automatic ranking or reclassification during the auction;
(b) the results of any initial evaluation of the elements of its bid when the contract is awarded on basis of most advantageous bid; and
(c) any other relevant information on the conduct of the auction.
Article 17.14. Treatment of Bids and Award of Contracts Treatment of Offers
1. A procuring entity shall receive and process all bids under procedures that ensure the equality and fairness of the procurement process, and the confidentiality of bids.
2. Where a procuring entity provides suppliers with the opportunity to correct any unintentional pre-award errors, as provided for in national law and without any change to the substantive content of the tender documents, the procuring entity shall provide suppliers with the opportunity to correct any unintentional pre-award errors as provided for in national law and without any change to the substantive content of the tender documents.
3. The procuring entity shall provide equal opportunity to all participating suppliers. Awarding of Contracts 3. A procuring entity shall require that, in order to be considered for an award, the bid:
(a) is submitted in writing by a supplier that meets all the conditions for participation; and
(b) at the time of opening, shall be in accordance with the essential requirements specified in the notices and procurement documents.
4. Unless a procuring entity determines that the award of a procurement contract would be contrary to the public interest, the procuring entity shall award the contract to the supplier that the procuring entity has determined meets the conditions of participation and is fully capable of performing the contract and, whose tender is considered the most advantageous based solely on the requirements and evaluation criteria specified in the procurement notices and documents, or where price is the sole evaluation criterion, the lowest price.