Article 10.14. Cybersecurity
1. The Parties recognise that threats to cybersecurity undermine confidence in electronic commerce.
2. In order to identify and mitigate those threats and thereby facilitate electronic commerce, Parties recognise the importance of:
(a) building the capabilities of their respective national entities responsible for cybersecurity incident response; and
(b) using collaboration mechanisms, as appropriate, to cooperate, anticipate, identify and mitigate malicious intrusions or dissemination of malicious code that affect electronic networks of the Parties and use those mechanisms to swiftly address cybersecurity incidents, as well as for the sharing of information for awareness and best practices.
3. Given the evolving nature of cybersecurity threats and their negative impact on electronic commerce, the Parties recognise that risk-based approaches are generally effective in addressing those threats and minimising trade barriers. Accordingly, each Party shall endeavour to employ, and shall encourage enterprises within its jurisdiction to use, risk-based approaches that rely on open and transparent standards and risk management best practices to identify and protect against cybersecurity risks and to detect, respond to, and recover from cybersecurity incidents.
Article 10.15. Regulatory Cooperation
1. The Parties shall maintain a dialogue on regulatory issues raised by digital trade, which shall inter alia address the following issues:
(a) the recognition and facilitation of interoperable cross-border electronic trust and authentication services;
(b) the treatment of direct marketing communications;
(c) the protection of consumers in the ambit of electronic commerce including building consumer confidence;
(d) the challenges for micro, small and medium-sized enterprises in digital trade; and
(e) any other issue relevant for the development of digital trade.
2. Such dialogue shall focus on exchange of information on the Parties’ respective laws and regulations on the issues referred to in paragraph 1 as well as on the implementation of such laws and regulations.
3. Recognising the global nature of electronic commerce, the Party shall endeavour to cooperate to:
(a) work together to assist micro, small and medium-sized enterprises to overcome obstacles to its use;
(b) exchange information and share views on consumer access to products and services offered online; and
(c) encourage business sectors to develop methods or practices that enhance consumer confidence to foster the use of electronic commerce.
4. The parties shall, where appropriate, cooperate and participate actively in international fora to promote the development of digital trade.
Chapter CHAPTER 11 GOVERNMENT PROCUREMENT
Article ARTICLE 11.1
Definitions
For the purposes of this Chapter:
"commercial goods or services" means goods or services of a type generally sold or offered for sale in the commercial marketplace to, and customarily purchased by, non-governmental buyers for non-governmental purposes;
"construction service" means a service that has as its objective the realization by whatever means of civil or building works, based on Division 51 of the United Nations Provisional Central Product Classification (CPC);
"days" means days means calendar days, unless otherwise specified
"electronic auction" means an iterative process that involves the use of electronic means for the presentation by suppliers of new prices and/or, where applicable, new values for quantifiable non-price elements of the tender related to the evaluation criteria resulting in a ranking or re-ranking of tenders;
"in writing or written" means any worded or numbered expression that can be read, reproduced and later communicated. It may include electronically transmitted and stored information;
"limited tendering" means a procurement method whereby the procuring entity contacts a supplier or suppliers of its choice;
"measure" means any law, regulation, procedure, administrative guidance or practice, or any action of a procuring entity relating to a covered procurement
"multi-use list" means a list of suppliers that a procuring entity has determined satisfy the conditions for participation in that list, and that the procuring entity intends to use more than once;
"notice of intended procurement" means a notice published by a procuring entity inviting interested suppliers to submit a request for participation, a tender, or both;
"offset" means any condition or undertaking that encourages local development or improves a Party’s balance-of-payments accounts, such as the use of domestic content, the licensing of technology, investment, counter-trade and similar action or requirement;
"open tendering" means a procurement method whereby all interested suppliers may submit a tender;
"person" means a natural person or a juridical person;
"procuring entity" means an entity covered under a Party’s market access schedule Section 1, 2 or 3 to Annex X
"publish" means to disseminate information in paper format or by electronic means that is distributed widely and is readily accessible to the general public;
"qualified supplier" means a supplier that a procuring entity recognizes as having satisfied the conditions for participation;
"selective tendering" means a procurement method whereby only qualified suppliers are invited by the procuring entity to submit a tender;
"services" includes construction services, unless otherwise specified;
"standard" means a document approved by a recognized body that provides for common and repeated use, rules, guidelines or characteristics for goods or services, or related processes and production methods, with which compliance is not mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements as they apply to a good, service, process or production method;
"supplier" means a person or group of persons that provides or could provide goods or services to procuring entity; and
"technical specification" means a tendering requirement that:
lays down the characteristics of goods or services to be procured, including quality, performance, safety and dimensions, or the processes and methods for their production or provision; or
addresses terminology, symbols, packaging, marking or labelling requirements, as they apply to a good or service.
Article ARTICLE 11.2
Scope and coverage
Application of Agreement
This Chapter applies to any measure relating to a covered procurement, whether or not it is conducted exclusively or partially by electronic means.
For the purposes of this Chapter, "covered procurement" means procurement for governmental purposes:
of a good, a service, or any combination thereof:
as specified in each Party's Market Access Schedule provided in Annex 11; and
not procured with a view to commercial sale or resale, or for use in the production or supply of a good or a service for commercial sale or resale;
by any contractual means, including: purchase; lease; and rental or hire purchase, with or without an option to buy;
for which the value, as estimated in accordance with paragraphs 6 through 8, equals or exceeds the relevant threshold specified in a Party's Market Access Schedule provided in Annex 11, at the time of publication of a notice in accordance with Article 11.6;
by a procuring entity as specified in each Party's Market Access Schedule provided in Annex 11; and
that is not otherwise excluded from coverage in paragraph 3 or a Party's Market Access Schedule provided in Annex 11.
Except as otherwise provided in a Party's Market Access Schedule provided in Annex 11, this Chapter does not apply to:
the acquisition or rental of land, existing buildings or other immovable property or the rights thereon;
non-contractual agreements or any form of assistance that a Party provides, including cooperative agreements, grants, loans, equity infusions, guarantees and fiscal incentives
the procurement or acquisition of fiscal agency or depository services, liquidation and management services for regulated financial institutions or services related to the sale, redemption and distribution of public debt, including loans and government bonds, notes and other securities;
public employment contracts;
goods or services that are procured by a covered entity internally; and
procurement conducted:
for the specific purpose of providing international assistance, including development aid;
under the particular procedure or condition of an international agreement relating to the stationing of troops or relating to the joint implementation by the signatory countries of a project; or
under the particular procedure or condition of an international organisation, or funded by international grants, loans or other assistance.
A procurement subject to this Chapter shall be all procurement covered by the Market Access Schedules of Indonesia and the European Union provided in Annex 11, in which each Party's commitments are set out as follows:
in Sub-Section 1, the central government entities whose procurement is covered by this Chapter
in Sub-Section 2, the sub-central government entities whose procurement is covered by this Chapter
in Sub-Section 3, all other entities whose procurement is covered by this Chapter;
in Sub-Section 4, the goods covered by this Chapter;
in Sub-Section 5, the services, other than construction services, covered by this Chapter;
in Sub-Section 6, the construction services covered by this Chapter;
in Sub-Section 7, any General Notes, including transitional measures for the application of this Chapter; and
in Sub-Section 8, the media in which the Party publishes its procurement notices, award notices, and other information related to its public procurement system as set out in this Chapter.
If a procuring entity, in the context of covered procurement, requires other entities or a person whose procurement is not covered under a Party's Market Access Schedule provided in Annex 11 to procure in accordance with particular requirements, Article 11.4 shall apply mutatis mutandis to such requirements.
Valuation
In estimating the value of a procurement for the purpose of ascertaining whether it is a covered procurement, a procuring entity shall:
neither divide a procurement into separate procurements nor select or use a particular valuation method for estimating the value of a procurement with the intention of totally or partially excluding it from the application of this Chapter; and
include the estimated maximum total value of the procurement over its entire duration, whether awarded to one or more suppliers, taking into account all forms of remuneration, including:
premiums, fees, commissions and interest; and
if the procurement provides for the possibility of options, the total value of such options
If an individual requirement for a procurement results in the award of more than one contract, or in the award of contracts in separate parts ('recurring contracts') the calculation of the estimated maximum total value shall be based on:
the value of recurring contracts of the same type of good or service awarded during the preceding 12 months or the procuring entity's preceding fiscal year, adjusted, if possible, to take into account anticipated changes in the quantity or value of the good or service being procured over the following 12 months; or
the estimated value of recurring contracts of the same type of good or service to be awarded during the 12 months following the initial contract award or the procuring entity's fiscal year.
In the case of procurement by lease, rental or hire purchase of a good or a service, or procurement for which a total price is not specified, the basis for valuation shall be:
in the case of a fixed-term contract:
if the term of the contract is 12 months or less, the total estimated maximum value for its duration; or
if the term of the contract exceeds 12 months, the total estimated maximum value, including any estimated residual value;
if the contract is for an indefinite period, the estimated monthly instalment multiplied by 48; and
if it is not certain whether the contract is to be a fixed-term contract, subparagraph (b) shall be used.
Article ARTICLE 11.3
Security and general exceptions
Nothing in this Chapter shall be construed to prevent a Party from taking any action or from not disclosing any information that it considers necessary for the protection of its essential security interests relating to the procurement:
of arms, ammunition or war material;
or to procurement indispensable for national security; or
for national defence purposes.
Provided that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between the Parties where the same conditions prevail or a disguised restriction on international trade, nothing in this Chapter shall be construed to prevent a Party from imposing or enforcing measures:
necessary to protect public morals, order or safety;
necessary to protect human, animal or plant life or health;
necessary to protect intellectual property; or
relating to goods or services of persons with disabilities, of philanthropic institutions or of prison labour.
Article ARTICLE 11.4
General principles
Non-discrimination
1 With respect to any measure regarding covered procurement, each Party, including its procuring entities, shall accord immediately and unconditionally to the goods and services of the other Party and to the suppliers of the other Party offering such goods or services, treatment no less favourable than the treatment the Party, including its procuring entities, accords to its own goods, services and suppliers.
With respect to any measure regarding covered procurement, a Party, including its procuring entities, shall not:
treat a locally established supplier less favourably than another locally established supplier on the basis of the degree of foreign affiliation or ownership; or
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.
Local establishment
Each Party shall ensure that the suppliers of the other Party that have established a commercial presence in its territory through the constitution, acquisition or maintenance of a legal person are accorded national treatment with regard to any government procurement of the Party in its territory. This obligation applies irrespectively of whether or not the procurement is covered by the Parties’ annexes to this Agreement. However, the general exceptions set forth in Article 11.3 shall be applied.
Use of electronic means
When conducting covered procurement by electronic means, a procuring entity shall:
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
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.
The Parties shall conduct covered procurement by electronic means to the widest extent possible and shall endeavour to cooperate in developing and expanding the use of electronic means in government procurement systems.
When conducting covered procurement by electronic means, a procuring entity shall use electronic means of information and communication for the publication of notices and tender documentation in procurement procedures and shall use electronic means for the submission of tenders to the widest extent practicable.
Each Party shall endeavour to establish single electronic system to facilitate procurement process which covers procurement planning, procurement preparation, selection of suppliers, contract management, and awarding of contract.
Conduct of procurement
A procuring entity shall conduct covered procurement in a transparent and impartial manner that:
is consistent with this Chapter, using methods such as open tendering, selective tendering and limited tendering;
avoids conflicts of interest; and
prevents corrupt practices.
Development of new procurement policy
Nothing in this Chapter shall prevent a Party, including its procuring entities, from developing new procurement policies, procedures, or contractual means, provided that they are not inconsistent with this Chapter.
Rules of origin
For the 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 Party.
Offsets
With regard to covered procurement, a Party, including its procuring entities, shall not seek, take account of, impose or enforce any offset, unless stated in Each Party’s Market Access Schedule.
Measures not specific to procurement
Paragraphs 1 and 2 of this Article shall be without prejudice to each Party commitments under Chapters 2 and 8 of this Agreement [National Treatment and Market Access for Goods and Chapter Services and Investment], and for greater certainty, 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.
Article ARTICLE 11.5
Information on the procurement system
Each Party shall:
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
on the request of the other Party, provide an explanation thereof to the other Party.
Each Party shall list, in Sub-Section 8 of its Market Access Schedule provided in Annex 11:
the electronic or paper media in which the Party publishes the information described in paragraph 1 of this Article;
the electronic or paper media in which the Party publishes the notices required by Articles 11.6, 11.8(8) and 11.16(2); and
the website address or addresses where the Party publishes: its notices concerning awarded contracts pursuant to Article 11.16(2).
Each Party shall promptly notify the Specialised Committee on Services and Investment, Digital Trade, Government Procurement, Intellectual Property of any modification to the Party's information listed in Sub-Section 8 of Annex 11.
Article ARTICLE 11.6
Notices
All notices (notices of intended procurement, summary notice and notice of planned procurement) shall be directly accessible by electronic means free of charge through a single point of access on the internet. In addition, the notices may also be published in an appropriate paper medium which shall be widely disseminated and shall remain readily accessible to the public, at least until expiration of the time-period indicated in the notice. In case, notices are not written in English, at least summary notice shall be made available in English.
The appropriate paper and electronic medium is listed by each Party in its Sub-Section 8 of Annex 11.
Notice of intended procurement
For each covered procurement a procuring entity shall publish a notice of intended procurement, except in the circumstances described in Article 11.13.
Except as otherwise provided in this Chapter, each notice of intended procurement shall include the following information, unless that information is provided in the tender documentation
that is made available free of charge to all interested suppliers at the same time as the notice of intended procurement: