the protection of patents, copyrights or other exclusive rights; or
due to an absence of competition for technical reasons;
for additional deliveries by the original supplier of goods or services that were not included in the initial procurement if a change of supplier for such additional goods or services:
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
would cause significant inconvenience or substantial duplication of costs for the procuring entity;
only when strictly necessary if, 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;
for goods purchased on a commodity market;
if 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;
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
if a contract is awarded to a winner of a design contest provided that:
the contest has been organised in a manner that is consistent with the principles of this Chapter, in particular relating to the publication of a notice of intended procurement; and
(ii) the participants are judged by an independent jury with a view to a design contract being awarded to a winner; and
(i) consultancy services in the area of law including a legal consultant or advocacy or provision of an arbitrator that is previously not planned, to deal with any claim or legal proceedings
from certain parties, which by the nature or performance of work or defence must be prompt and cannot be postponed
A procuring entity shall prepare a report in writing on each contract awarded under paragraph 1 of this Article. The report shall include the name of the procuring entity, the value and kind of goods or services procured and a statement indicating the circumstances and conditions described in paragraph 1 of this Article that justified the use of limited tendering.
Article ARTICLE 11.14
Electronic auctions
If a procuring entity intends to conduct a covered procurement using an electronic auction, the entity shall, where applicable, provide each participant before commencing the electronic auction, with:
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 re-ranking during the auction;
the results of any initial evaluation of the elements of its tender if the contract is to be awarded on the basis of the most advantageous tender; and
any other relevant information relating to the conduct of the auction.
Article ARTICLE 11.15
Treatment of tenders and awarding of contracts
Treatment of tenders
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.
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.
If a procuring entity provides a supplier with an opportunity to correct unintentional errors of form, the procuring entity shall provide the same opportunity to all participating suppliers.
Awarding of contracts
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 submitted by a supplier that satisfies the conditions for participation.
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:
the most advantageous tender; or
if price is the sole criterion, the lowest price.
If 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.
A procuring entity shall not use options, cancel a procurement or modify awarded contracts in a manner that circumvents the obligations under this Chapter.
The Parties shall, as a general rule, provide for a standstill period between the award and the conclusion of a contract in order to give sufficient time to unsuccessful bidders to review and challenge the award decision.
Article ARTICLE 11.16
Transparency of procurement information Information provided to suppliers
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 Articles 11.17(2) and 11.17(3), 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
Not later than 30 days after the award of each contract covered by this Chapter, a procuring entity shall publish a notice in the appropriate paper or electronic medium listed in Sub-Section 8 of Annex 11. If the procuring entity publishes the notice only in an electronic medium, the information shall remain readily accessible for a reasonable period of time. The notice shall include at least the following information:
a description of the goods or services procured;
the name of the procuring entity;
the name and address of the successful supplier;
the value of the successful tender or the highest and lowest offers taken into account in the award of the contract;
the date of award; and
the type of procurement method used, and in cases where limited tendering was used in accordance with Article 11.13, a description of the circumstances justifying the use of limited tendering.
Maintenance of documentation, reports and electronic traceability
Each procuring entity shall, for a period of at least three years from the date it awards a contract, maintain:
the documentation and reports of tendering procedures and contract awards relating to covered procurement, including the reports required under Article 11.13; and
data that ensure the appropriate traceability of the conduct of covered procurement by electronic means.
Exchange of statistics
The Parties shall exchange statistics on procurement on a regular basis.
Article ARTICLE 11.17
Disclosure of information
Provision of information to parties
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 consent of, the Party that provided the information.
Non-disclosure of information
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.
Nothing in this Chapter shall be construed to require a Party, including its procuring entities, authorities and review bodies, to disclose confidential information if disclosure:
would impede law enforcement;
might prejudice fair competition between suppliers;
would prejudice the legitimate commercial interests of particular persons, including the protection of intellectual property; or
would otherwise be contrary to the public interest.
Article ARTICLE 11.18
Domestic review procedures
Each Party shall provide a timely, effective, transparent and non-discriminatory administrative or judicial review procedure through which a supplier may challenge:
a breach of the Chapter; or
if 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.
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.
Each supplier shall be allowed a sufficient period of time to prepare and submit a challenge, which shall be at least 10 days from the time when the basis of the challenge became known or reasonably should have become known to the supplier.
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 concerning the result of procurement process by a supplier arising in the context of a covered procurement.
If 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.
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:
the procuring entity shall respond in writing to the challenge and disclose all relevant documents to the review body;
the participants to the proceedings ('participants') shall have the right to be heard prior to a decision of the review body being made on the challenge;
the participants shall have the right to be represented and accompanied;
the participants shall have access to all proceedings;
the participants shall have the right to request that the proceedings take place in public and that witnesses may be presented; and
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.
Each Party shall adopt or maintain procedures that provide for:
rapid interim measures to preserve the supplier's opportunity to participate in the procurement. Such interim measures may result in suspension of the procurement process. The procedures may provide that overriding adverse consequences for the interests concerned, including the public interest, may be taken into account when deciding whether such measures should be applied. Just cause for not acting shall be provided in writing; and
where a review body has determined that there has been a breach or a failure as referred to in paragraph 1, corrective action or compensation for the loss or damages suffered.
Article ARTICLE 11.19
Cooperation on government procurement
The Parties shall cooperate, on mutually agreed terms, on matters relating to government procurement with a view to:
increase the understanding of their respective government procurement systems and markets; and
improve the capacity of procurement stakeholders from both Parties.
The cooperation mentioned in paragraph 1 shall include, but not be limited to:
sharing information on government procurement best practices including on electronic procurement system, fostering participation of small medium enterprises; and
exchanging information on Parties’ laws, regulations, and procedures, and any modifications thereof
to the extent possible – provision of training, technical assistance and/or capacity building to Parties; and sharing information on these initiatives
Article ARTICLE 11.20
Modifications and rectifications to coverage
A Party may modify or rectify its Market Access Schedules provided for in Annex 11.
Modifications
When a Party modifies its Market Access Schedule provided in Annex 11, the Party shall:
notify the other Party in writing; and
include in the notification a proposal of appropriate compensatory adjustments to the other Party to maintain a level of coverage comparable to that existing prior to the modification.
Notwithstanding subparagraph 2 (b) of this Article, a Party need not provide compensatory adjustments if the modification covers an entity over which the Party has effectively eliminated its control or influence. Government control or influence over the covered procurement of entities listed in Market Access Schedules provided in Annex 11 is deemed to be effectively eliminated if the procuring entity performs a competitive activity.
If the other Party disputes that:
an adjustment proposed under subparagraph 2 (b) of this Article is appropriate; or
the modification covers an entity over which the Party has effectively eliminated its control or influence under paragraph 3 of this Article;
it must object in writing within 45 days of receipt of the notification referred to in subparagraph 2
of this Article. If no such objection is submitted, the Party shall be deemed to have accepted the proposed adjustment or modification.
Rectifications
The following changes to a Party’s Market Access Schedules provided in Annex 11 shall be considered a rectification of a purely formal nature, provided that they do not affect the mutually agreed coverage provided for in the Chapter:
a change in the name of an entity;
a merger of two or more entities listed within an Annex; and
the separation of an entity listed in an Annex into two or more entities that are all added to the entities listed in the same Annex.
In the case of proposed rectifications to a Party’s Market Access Schedules provided in Annex 11 , the Party shall notify the other Party every two years, following the entry into force of this Chapter.
A Party may notify the other Party of an objection to a proposed rectification within 45 days from having received the notification. Where a Party submits an objection, it shall set out the reasons why it believes the proposed rectification is not a change provided for in paragraph 5 of this Article, and describe the effect of the proposed rectification on the mutually agreed coverage provided for in the Agreement. If no such objection is submitted in writing within 45 days after having received the notification, the Party shall be deemed to have agreed to the proposed rectification.
Consultations and dispute resolution
If a Party objects to the proposed modification or the proposed compensatory adjustments referred to in Article xx or to the proposed rectification referred to in Article xx, the Parties shall seek to resolve the issue through consultations. If no agreement is found within 120 days of receipt of the objection, the Party seeking to modify or rectify its Market access schedule may refer the matter to dispute settlement in accordance with Chapter 22 [dispute settlement], to determine whether the objection is justified.
Amendment of Party’s Market Access Schedules provided in Annex 11
The proposed modification or rectification shall take effect only when both Parties have agreed or on the basis of a final decision of a panel established under Chapter 22(dispute settlement).
Article ARTICLE 11.21
Specialised Committee on Services and Investment, Digital Trade, Government Procurement, Intellectual Property
For the purposes of the effective implementation and operation of this Chapter, the [Committee on Services and Investment, Digital Trade, Government Procurement, Intellectual Property (hereinafter referred to in this Article as "the Committee")] established in accordance with Article 24.4 shall have the following functions:
reviewing and monitoring the implementation and operation of this Chapter;
exchanging views on laws and regulations, policies and practices, and other mutually agreed issues regarding government procurement;
discussing ways to facilitate cooperation between relevant entities of the Parties in the field of government procurement;
reporting the findings of [the Committee] to the [Trade Committee]; and
carrying out other functions as may be delegated by the [Trade Committee] in accordance with Article 24.2(2)(b).
Article ARTICLE 11.22
Dispute settlement1
Pending discussions pursuant to Article 11.23 [Further negotiations], Chapter 22 [Dispute Settlement] shall not apply to any dispute or differences arising from the interpretation and application of this Chapter in relation to covered procurement.
Article ARTICLE 11.23
Further negotiations
The Parties shall enter into negotiations on market access between the Parties, no later than 5 years and not sooner than 3 years from the entry into force of this agreement, unless the Parties agree otherwise.
Article ARTICLE 11.24
Technical consultation
1 For greater certainty, negotiation as provided in Article 23 (Further negotiation), includes on the application of dispute settlement chapter to any dispute or differences arising from the interpretation and application of this Chapter in relation to covered procurement.
The Parties shall seek to resolve any concerns arising from the implementation of this Section through technical consultations pursuant to this Article prior to initiating dispute settlement pursuant to Chapter 22 (Dispute settlement). The technical consultations shall endeavour to arrive at mutually satisfactory resolution of the concerns2.
For the purposes of paragraph 1 of this Article, a Party may make a request (hereinafter referred to as "requesting Party") to the other Party (hereinafter referred to as "requested Party") to hold technical consultations The request shall be made in writing3 and identify:
the matter or measure at issue;
provisions of this Section to which the concerns are related to; and
the reasons for the request, including a description of the requesting Party’s concerns regarding the measures or matters.
At the request of either Party, the Parties shall meet to discuss the concerns raised in the request, in person or by any technological means available to the Parties. If the meeting is held in person, it shall be held in the capital of the requested Party, unless the Parties agree otherwise.
The Parties shall endeavour to resolve the matter as expeditiously as possible within 60 calendar days from the date of receipt of the request. If the requesting Party believes that the matter is urgent and require immediate settlement, it may request a shorter time frame. In such cases, the requested Party shall give positive consideration to such request.
A Party may request or exchange further information relevant to paragraph 2 of this Article, and the information obtained or communications between the Parties under this Article shall be confidential unless the Parties agreed otherwise.
2 For greater certainty, technical consultations pursuant to this Article shall not replace consultations under Article XX (Article on Consultations under the Dispute Settlement Chapter), unless the Parties agree otherwise.
3 In the case the request is sent by electronic means, the requested Party shall promptly confirm the receipt of such a request and no later than within 14 calendar days of receipt.
Any resolution reached between the Parties as a result of technical consultations under this Article shall be notified to the Trade Committee and shall be without prejudice to the rights of the parties in any further proceedings, and only be used in the framework of this agreement.
Article ARTICLE 11.25
International assistance
Notwithstanding provisions in points (f)(i) and (f)(ii) of the Article 11.2(3), with regard to any procurement or part of it funded by international grants, loans or other assistance of the other Party, Parties shall grant national treatment to suppliers, goods and services of both Parties, unless otherwise agreed by the parties to a relevant grant or loan agreement. This obligation applies
irrespectively of whether or not the procurement is covered by the Parties’ Market Access Schedules provided in Annex 11 .