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.
Article ARTICLE 11.10
Market consultation
Before launching a procurement, procuring entities may conduct market consultations with a view to preparing the procurement, notably for the development of technical specifications.
For that purpose, procuring entities may seek or accept advice from independent experts or authorities or from market participants. That advice may be used in the planning and conduct of the procurement procedure, provided that such advice does not have the effect of distorting competition and does not result in violation of the principles as established in Article 11.4.
Article ARTICLE 11.11
Time-periods
General
A procuring entity shall, consistent with its own reasonable needs, provide sufficient time for suppliers to prepare and submit requests for participation and responsive tenders, taking into account such factors as:
the nature and complexity of the procurement;
the extent of subcontracting anticipated; and
the time necessary for transmitting tenders by non-electronic means from foreign as well as domestic points if electronic means are not used.
These time-periods, including any extension of the time-periods, shall be the same for all interested or participating suppliers.
Deadlines
A procuring entity that uses selective tendering shall establish that the final date for the submission of requests for participation shall not, in principle, be less than 25 days from the date of publication of the notice of intended procurement. If a state of urgency duly substantiated by the procuring entity renders this time-period impracticable, the time-period may be reduced to not less than 10 days.
Except as provided for in paragraphs 4, 5, 7 and 8 of this Article, a procuring entity shall establish that the final date for the submission of tenders shall not be less than 40 days from the date on which:
in the case of open tendering, the notice of intended procurement is published; or
in the case of selective tendering, the entity notifies suppliers that they will be invited to submit tenders.
A procuring entity may reduce the time-period for tendering established in accordance with paragraph 3 of this Article to not less than 10 days if:
the procuring entity has published a notice of planned procurement as described in Article 11.6(6) at least 40 days and not more than 12 months in advance of the publication of the notice of intended procurement, and the notice of planned procurement contains:
a description of the procurement;
the approximate final dates for the submission of tenders or requests for participation;
a statement that interested suppliers should express their interest in the procurement to the procuring entity;
the address from which documents relating to the procurement may be obtained; and
as much of the information that is required for the notice of intended procurement under Article 11.6(4), as is available;
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
a state of urgency duly substantiated by the procuring entity renders the time-period for tendering established in accordance with paragraph 3 of this Article impracticable.
A procuring entity may reduce the time-period for tendering established in accordance with paragraph 3 of this Article by five days for each one of the following circumstances:
the notice of intended procurement is published by electronic means;
all the tender documentation is made available by electronic means from the date of the publication of the notice of intended procurement; and
the procuring entity accepts tenders by electronic means.
The application of paragraph 5 of this Article, in conjunction with paragraph 4 of this Article, shall in no case result in the reduction of the time-period for tendering established in accordance with paragraph 3 of this Article to less than 10 days from the date on which the notice of intended procurement is published.
Notwithstanding any other provision in this Article, if 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 3 of this Article to not less than 13 days, provided that it publishes by electronic means, at the same time, both the notice of intended procurement and the tender documentation. In addition, if the entity accepts tenders for commercial
goods or services by electronic means, it may reduce the time-period established in accordance with paragraph 3 to not less than 10 days.
If a procuring entity covered under Sections 2 or 3 of Annex 11 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. In the absence of agreement, the period shall not be less than 10 days.
Article ARTICLE 11.12
Negotiation
A Party may provide for its procuring entities to conduct negotiations with suppliers:
if the entity has indicated its intent to conduct negotiations in the notice of intended procurement required under Article 11.6(4); or
if 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.
A procuring entity shall:
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
if negotiations are concluded, provide a common deadline for the remaining participating suppliers to submit any new or revised tenders.
Article ARTICLE 11.13
Limited tendering
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 11.6 to 11.8, paragraphs (6) to (10) of Article 11.9, and Articles 11.11, 11.12, 11.14 and 11.15 under any of the following circumstances:
if, in response to a notice of intended procurement:
no tenders were submitted or no suppliers requested participation;
no tenders that conform to the essential requirements of the tender documentation were submitted;
no suppliers satisfied the conditions for participation; or
the tenders submitted have been collusive,
provided that the requirements of the tender documentation are not substantially modified;
if the goods or services can be supplied only by a particular supplier and no reasonable alternative or substitute goods or services exist for any of the following reasons:
the requirement is for a work of art;