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:
the name and address of the procuring entity and other 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;
a description of the procurement, including the nature and the quantity of the goods or services to be procured or, if the quantity is not known, the estimated quantity;
for recurring contracts, an estimate, if possible, of the timing of subsequent notices of intended procurement;
a description of options, if any;
the time-frame for delivery of goods or services or the duration of the contract;
the procurement method that will be used and whether it will involve negotiation or electronic auction;
if applicable, the address and any final date for the submission of requests for participation in the procurement;
the address and the final date for the submission of tenders;
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;
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;
if, pursuant to Article 11.8, 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, if applicable, any limitation on the number of suppliers that will be permitted to tender; and
an indication that the procurement is covered by this Chapter.
Summary notice
For each case of intended procurement, a procuring entity shall publish a summary notice that is readily accessible, at the same time as the publication of the notice of intended procurement, in English. The summary notice shall contain at least the following information:
the subject-matter of the procurement;
the final date for the submission of tenders or, if applicable, any final date for the submission of requests for participation in the procurement or for inclusion on a multi-use list; and
the address from which documents relating to the procurement may be requested.
Notice of planned procurement
Procuring entities are encouraged to publish in the appropriate electronic and, if available, paper medium listed in Sub-Section 8 of Annex 11 as early as possible in each fiscal year a notice regarding their future procurement plans (‘notice of planned procurement’). The notice of planned procurement shall also be published in the single point of access site listed in Sub-Section 8 of Annexe 11, subject to paragraph 2 of this Article. The notice of planned procurement should include the subject-matter of the procurement and the planned date of the publication of the notice of intended procurement.
A procuring entity covered under Sub-Sections 2 or 3 of Annex 11 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 ARTICLE 11.7
Conditions for participation
A procuring entity shall limit any conditions for participation in a covered 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.
In establishing the conditions for participation, a procuring entity:
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 a Party;
may require relevant prior experience if essential to meet the requirements of the procurement; and
shall not require prior experience in the territory of the Party to be a condition of the procurement.
In assessing whether a supplier satisfies the conditions for participation, a procuring entity:
shall 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
shall base its evaluation on the conditions that the procuring entity has specified in advance in notices or tender documentation.
If there is supporting evidence, a Party, including its procuring entities, may exclude a supplier on grounds such as:
bankruptcy;
false declarations;
significant or persistent deficiencies in performance of any substantive requirement or obligation under a prior contract or contracts;
final judgments in respect of serious crimes or other serious offences;
professional misconduct or acts or omissions that adversely reflect on the commercial integrity of the supplier; or
failure to pay taxes.
Article ARTICLE 11.8
Qualification of suppliers Registration systems and qualification procedures
A Party, including its procuring entities, may maintain a supplier registration system under which interested suppliers are required to register and provide certain information, to the extent possible, through electronic means.
Where a Party or one of its procuring entities, pursuant to paragraph 1 of this Article, maintains a supplier registration system, it shall endeavour to ensure that interested suppliers have access to information on the registration system, if possible through electronic means, and that they may request registration at any time. The competent authority shall inform them within a reasonable period of time of the decision to grant or reject this request. If the request is rejected, the decision must be duly motivated.
Each Party shall ensure that:
its procuring entities make efforts to minimise differences in their qualification procedures; and
if its procuring entities maintain registration systems, the entities make efforts to minimise differences in their registration systems.
A Party, including its procuring entities, shall not adopt or apply a 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.
Selective tendering
If a procuring entity intends to use selective tendering, the entity shall:
include in the notice of intended procurement at least the information specified in Article 11.6(4) (a), (b), (f), (g), (j), (k) and (l) and invite suppliers to submit a request for participation; and
provide, by the commencement of the time-period for tendering, at least the information in Article 11.6(4)] (c), (d), (e), (h) and (i) to the qualified suppliers that it notifies as specified in Article 11.11(3)(b).
address invitation to submit a tender to a number of suppliers that is sufficient to ensure effective competition.
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.
If the tender documentation is not made publicly available from the date of publication of the notice referred to in paragraph 5 of this Article, 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 of this Article.
Multi-use lists
A procuring entity may maintain a multi-use list of suppliers, provided that a notice inviting interested suppliers to apply for inclusion on the list is made available in the appropriate medium listed in Sub-Section 8 of Annex 11.
The notice provided for in paragraph 8 of this Article shall include:
a description of the goods or services, or categories thereof, for which the list may be used;
the conditions for participation to be satisfied by suppliers for inclusion on the list and the methods that the procuring entity will use to verify that a supplier satisfies the conditions;
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
the period of validity of the list and the means for its renewal or termination, or if 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.
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 reasonable period of time.
A procuring entity shall promptly inform any supplier that submits an application for inclusion on a multi-use list of the procuring entity's decision with respect to the request or application.
If a procuring entity rejects a supplier's 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 ARTICLE 11.9
Technical specifications and tender documentation
Technical specifications
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.
In prescribing the technical specifications for the goods or services being procured, a procuring entity shall, if appropriate:
set out the technical specification in terms of performance and functional requirements, rather than design or descriptive characteristics; and
base the technical specification on international standards, if they exist; otherwise, on national technical regulations, recognised national standards or building codes.
If design or descriptive characteristics are used in the technical specifications, a procuring entity should indicate, if 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.
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, the entity includes words such as ‘or equivalent’ in the tender documentation.
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.
Tender documentation
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:
the procurement, including the nature and the quantity of the goods or services to be procured or, if 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;
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;
all evaluation criteria the entity will apply in the awarding of the contract, and, unless price is the sole criterion, the relative importance of that criteria;
if 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;
if 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;
if 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;
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
any dates for the delivery of goods or the supply of services.
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.
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. Such criteria, where applicable, shall be based on relevant and mutually recognized international standards.
A procuring entity shall promptly:
make available tender documentation to ensure that interested suppliers have sufficient time to submit responsive tenders;
provide, on request, the tender documentation to any interested supplier; and
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
If, 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:
to all suppliers that are participating at the time of the modification, amendment or re-issuance, if such suppliers are known to the entity, and in all other cases, in the same manner as the original information was made available; and
in adequate time to allow such suppliers to modify and re-submit amended tenders, as appropriate.