(a) subject to the availability of resources;
(b) pursuant to a request from a Party; and
(c) to be conducted on the terms and conditions mutually decided upon between the Parties.
Article 10.22. Digital Inclusion
1. The Parties acknowledge the importance of digital inclusion to ensure that all people and businesses have what they need to participate in, contribute to, and benefit from the digital economy.
2. The Parties recognise the importance of expanding and facilitating digital economy opportunities by removing barriers. This may include enhancing cultural and people-to-people links, including between Indigenous Peoples, and improving access for women, rural populations and low socio-economic groups.
3. To this end, the Parties shall cooperate on matters relating to digital inclusion, including the participation of women, rural populations, low socio-economic groups and Indigenous Peoples in the digital economy. Cooperation may include:
(a) sharing of experiences and best practices, including exchange of experts, with respect to digital inclusion;
(b) promoting inclusive and sustainable economic growth, to help ensure that the benefits of the digital economy are more widely shared;
(c) addressing barriers in accessing digital economy opportunities;
(d) developing programmes to promote participation of all groups in the digital economy;
(e) sharing methods and procedures for the collection of disaggregated data, the use of indicators, and the analysis of statistics related to participation in the digital economy; and
(f) other areas as mutually agreed by the Parties.
4. Cooperation activities relating to digital inclusion may be carried out through the coordination, as appropriate, of the Parties' respective agencies, enterprises, labour unions, civil society, academic institutions and non-governmental organisations, among others.
Chapter 11. GOVERNMENT PROCUREMENT
Article 11.1. General
The Parties recognise the importance of government procurement in trade relations and set as their objective the effective, reciprocal and gradual opening of their government procurement markets, in order to maximise, inter alia, competitive opportunities based on principles of equality, transparency, integrity, fair treatment and non-discrimination for the suppliers of the Parties.
Article 11.2. Definitions
For the purpose of this Chapter:
electronic auction means an iterative process that involves the use of electronic means for the presentation by suppliers of either new prices, or new values for quantifiable non-price elements of the tender related to the evaluation criteria, or both, resulting in a ranking or re-ranking of tenders;
goods or services means goods or services that a procuring entity needs to carry out its business;
in writing or written means any worded or numbered expression that can be read, reproduced and may be 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 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;
procuring entity means an entity listed in Annex 11-A;
qualified supplier means a supplier that a procuring entity recognises 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 provided in this Chapter;
standard means a document approved by a recognised 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 a procuring entity; and
technical specification means a tendering requirement that:
(a) 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
(b) addresses terminology, symbols, packaging, marking or labelling requirements, as they apply to a good or service.
Article 11.3. Scope
Application of Chapter
1. This Chapter applies to any measure regarding covered procurement.
2. For the purposes of this Chapter, covered procurement means government procurement:
(a) of a good, service or any combination thereof as specified in each Party's Schedule to Annex 11-A;
(b) by a procuring entity;
(c) by any contractual means, including: purchase; lease; and rental or hire purchase, with or without an option to buy;
(d) for which the value, as estimated in accordance with paragraph 6, equals or exceeds the relevant threshold specified in a Party's Schedule to Annex 11- A, at the time of publication of a notice of procurement; and
(e) that is not otherwise excluded from coverage under this Agreement.
Activities Not Covered
3. Unless otherwise provided in a Party's Schedule to Annex 11-A, this Chapter does not apply to:
(a) the acquisition or rental of land, existing buildings, or other immovable property or the rights thereon;
(b) non-contractual agreements or any form of assistance that a Party provides, including cooperative agreements, grants, loans, equity infusions, guarantees, and fiscal incentives;
(c) 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;
(d) public employment contracts;
(e) procurement conducted:
(i) for the specific purpose of providing international assistance including development aid;
(ii) 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
(iii) under the particular procedure or condition of an international organisation, or funded by international grants, loans, or other assistance where the applicable procedure or condition would be inconsistent with this Chapter.
Schedules
4. Each Party shall specify the following information in its Schedule to Annex 11-A:
(a) in Section A, the central government entities whose procurement is covered by this Chapter;
(b) in Section B, other entities whose procurement is covered by this Chapter; (c) in Section C, the goods covered by this Chapter;
(d) in Section D, the services covered by this Chapter;
(e) in Section E, any general notes;
(f) in Section F, time periods required under Article 11.14;
(g) in Section G, the publication of procurement information required under Article 11.6 and Article 11.7(2); and
(h) in Section H, the applicable threshold adjustment formula.
Compliance
5. Each Party shall ensure that its procuring entities comply with this Chapter in conducting covered procurements.
6. Aprocuring entity shall not prepare a procurement, or otherwise structure or divide a procurement into separate procurements in any stage of the procurement, or use a particular method to estimate the value of a procurement, in order to avoid the obligations of this Chapter.
7. Nothing in this Chapter shall be construed to prevent a Party, including its procuring entities, from developing new procurement policies, procedures, or templates, provided that they are not inconsistent with this Chapter.
Valuation
8. In estimating the value of a procurement for the purpose of ascertaining whether it is a covered procurement, a procuring entity shall:
(a) 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
(b) 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:
(i) premiums, fees, commissions and interest; and
(ii) where the procurement provides for the possibility of options, the total value of such options.
Article 11.4. Exceptions
1. Subject to the requirement that a measure is 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, including its procuring entities, from adopting or maintaining a measure:
(a) necessary to protect public morals, interest, order or safety;
(b) necessary to protect human, animal or plant life or health;
(c) necessary to protect intellectual property; or
(d) relating to the good or service of a person with disabilities, of philanthropic or not-for-profit institutions, or of prison labour.
2. Nothing in this Chapter shall be construed to prevent a Party from taking any action or 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 materials, or to procurement indispensable for national security or for national defence purposes.
3. The Parties understand that subparagraph 1(b) includes environmental measures necessary to protect human, animal or plant life or health.
Article 11.5. General Principles
National Treatment and Non-Discrimination (1)
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, treatment no less favorable than the treatment that the Party, including its procuring entities, accords to domestic goods, services, and suppliers.
2. With respect to any measure regarding covered procurement, a Party, including its procuring entities, shall not:
(a) treat a locally established supplier less favorably than another locally established supplier on the basis of degree of foreign affiliation to, or ownership by, a person of the other Party; or
(b) discriminate against a locally established supplier on the basis that the good or service offered by that supplier for a particular procurement is a good or service of the other Party.
3. All orders under contracts awarded for covered procurement shall be subject to paragraphs 1 and 2 of this Article.
Procurement Methods
4. A procuring entity shall use an open tendering procedure for covered procurement unless Article 11.9 or Article 11.10 applies.
Conduct of Procurement
5. Aprocuring entity shall conduct covered procurement in a transparent and impartial manner that:
(a) avoids conflicts of interest; and
(b) prevents corrupt practices.
Rules of Origin
6. 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 same Party.
Use of Electronic Means
7. The Parties shall provide for covered procurement to be undertaken through electronic means, including for the publication of procurement information, notices and tender documentation, and for the receipt of offers, generally, the full cycle of procure to pay.
8. When conducting covered procurement by electronic means, a procuring entity shall:
(a) 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 financial systems, information technology systems, and software; and
(b) establish and maintain mechanisms that ensure the integrity of information provided by suppliers.
Offsets
9. With regard to covered procurement, a Party, including its procuring entities, shall
not seek, take account of, impose, or enforce any offset at any stage of a procurement. (2)
Measures Not Specific to Procurement
10. Paragraphs 1 and 2 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 11.6. Publication of Procurement Information
1. Each Party shall promptly publish any measure of general application relating to covered procurement, and any change or addition to this information.
2. Each Party shall list in Section G of its Schedule to Annex 11-A the electronic means through which the Party publishes the information described in paragraph 1 and the notices required by Article 11.7, Article 11.9, and Article 11.16.
3. Each Party shall, on request, provide an explanation in response to an inquiry relating to the information referred to in paragraph 1.
Article 11.7. Notice of Procurement
1. Except in the circumstances described in Article 11.10, and where applicable for each covered procurement, a procuring entity shall publish a notice of procurement through the appropriate paper or electronic means listed in Annex 11-A. The notice shall remain readily accessible to the public until at least the expiration of the time period for responding to the notice or the deadline for submission of the offers.
2. The notice shall, if accessible by electronic means, be provided free of charge, through a single point of access, set out in Section G in Annex 11-A.
3. Unless otherwise provided in this Chapter, each notice of 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 procurement:
(a) 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 the cost and terms of payment to obtain the relevant documents, if any;
(b) a description of the procurement, including the nature, exact or estimated quantity, and technical specification of the goods or services to be procured;
(c) if applicable, the contract terms and duration, service levels required from suppliers, and time frame for delivery of goods or services;
(d) the mechanism, criteria and weighting used for the evaluation of requests for participation in the procurement or the submission of tenders;
(e) the address and final date for the submission of requests for participation in the procurement or the submission on tenders;
(f) the language or languages in which requests for participation in the procurement or the submission may be submitted, if other than an official language of the Party of the procuring entity; and
(g) if applicable, a list and a brief description of any conditions for participation of suppliers, that may include any related requirements for specific documents or certifications that suppliers must provide.
Notice of Planned Procurement
4. Each Party shall encourage its procuring entities to publish, as early as possible in each fiscal year, information regarding their indicative procurement plans.
Article 11.8. Conditions for Participation
1. A procuring entity shall limit any conditions for participation in a covered procurement to those conditions that are essential to ensure that a supplier has the legal and financial capacities and the commercial and technical abilities to fulfil the requirements of that procurement.
2. In establishing the conditions for participation, a procuring entity:
(a) 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 given Party or that the supplier has prior work experience in the territory of that Party; and
(b) may require relevant prior experience if essential to meet the requirements of the procurement.
3. In assessing whether a supplier satisfies the conditions for participation, a procuring entity shall:
(a) evaluate the financial capacity, the commercial and technical abilities, and the regulatory compliance practices 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 (3) and
(b) base its evaluation solely on the conditions that the procuring entity has specified in advance in notices or tender documentation.
4. Where there is supporting justification, a Party, including its procuring entities, may exclude a supplier on grounds such as:
(a) bankruptcy or insolvency;
(b) false declarations;
(c) significant or persistent deficiencies in the performance of any substantive requirement or obligation under a prior contract or contracts;
(d) final judgments in respect of serious crimes or other serious offences;
(e) professional misconduct, actions or omissions, or unethical practices that reflect on the commercial integrity of the supplier; or
(f) failure to pay government fees or taxes.
Article 11.9. Qualification of Suppliers
Registration Systems and Qualification Procedures
1. A Party, including its procuring entities, may maintain a supplier registration system under which interested suppliers are required to register and provide certain information and documentation.
2. A Party, including its procuring entities, shall not:
(a) adopt or apply any 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; or
(b) use any registration system or qualification procedure to prevent or delay the inclusion of suppliers of the other Party on a list of suppliers or prevent those suppliers from being considered for a particular procurement.
Selective Tendering