(m) "procuring entity" means an entity covered under a Party's Appendix I of ANNEX 1 to this Agreement;
(n) "qualified supplier" means a supplier that a procuring entity recognises as having satisfied the conditions for participation;
(o) "selective tendering" means a procurement method whereby only qualified suppliers are invited by the procuring entity to submit a tender;
(p) "services" includes construction services, unless otherwise specified;
(q) "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;
(m) "procuring entity" means an entity covered under a Party's Appendix I of ANNEX 1 to this Agreement;
(n) "qualified supplier" means a supplier that a procuring entity recognises as having satisfied the conditions for participation;
(o) "selective tendering" means a procurement method whereby only qualified suppliers are invited by the procuring entity to submit a tender;
(p) "services" includes construction services, unless otherwise specified;
(q) "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;
(r) "supplier" means a person or group of persons that provides or could provide goods or services; and
(s) "technical specification" means a tendering requirement that:
(i) 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
(ii) addresses terminology, symbols, packaging, marking or labelling requirements, as they apply to a good or service.
Article 42. Scope and Coverage
1. This Chapter applies to any measure regarding covered procurement. For the purposes of this Chapter, covered procurement means procurement for governmental purposes:
(a) of goods, services, or any combination thereof:
(i) as specified in each Party's Sub-Annexes of Appendix I of ANNEX 1 to this Agreement; and
(ii) not procured with a view to commercial sale or resale, or for use in the production or supply of goods or services for commercial sale or resale;
(b) by any contractual means, including purchase, lease, and rental or hire purchase, with or without an option to buy;
(c) for which the value equals or exceeds the relevant threshold specified in each Party's Sub-Annexes of Appendix I of ANNEX 1 to this Agreement, at the time of publication of a notice in accordance with Article 45;
(d) by a procuring entity; and
(e) that is not otherwise excluded from coverage.
2. Except where provided, 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 depositary 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;
(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.
3. Each Party shall define and specify the following information in its Sub-Annexes of Appendix I of ANNEX 1 to this Agreement:
(a) In Sub-Annex 1, the central government entities whose procurement is covered by this Chapter;
(b) In Sub-Annex 2, all other entities whose procurement is covered by this Chapter;
(c) In Sub-Annex 3, the services, other than construction services, covered by this Chapter;
(d) In Sub-Annex 4, the construction services covered by this Chapter;
(e) In Sub-Annex 5, any General Notes.
4. Where a procuring entity, in the context of covered procurement, requires persons not covered under a Party's Sub-Annexes of Appendix I of ANNEX 1 to this Agreement to procure in accordance with particular requirements, Article 43 shall apply mutatis mutandis to such requirements.
5. 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.
6. Nothing in this Chapter shall be construed to prevent any 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.
7. Subject to the requirement that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between Parties where the same conditions prevail or a disguised restriction on international trade, nothing in this Chapter shall be construed to prevent any Party from imposing or enforcing measures:
(a) necessary to protect public morals, order or safety;
(b) necessary to protect human, animal or plant life or health;
(c) necessary to protect intellectual property; or
(d) relating to goods or services of persons with disabilities, philanthropic institutions or prison labour.
Article 43. General Principles
1. With respect to any measure and any 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 the goods or services, treatment no less favourable than the treatment 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 favourably than another locally established supplier on the basis of degree of foreign affiliation or ownership; nor
(b) 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. 3
3. With respect to any laws, regulations, procedures and practices regarding government procurement, as well as in respect of specific procurements by public authorities at all levels, opened to goods, services and suppliers of third countries, Iraq shall provide to the goods, services and suppliers of the Union treatment no less favourable than that accorded to goods, services and suppliers of any third country.
Use of electronic means
4. 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 information technology systems and software; and
(b) maintain mechanisms that ensure the integrity of requests for participation and tenders, including establishment of the time and receipt and the prevention of inappropriate access.
Conduct of procurement
5. A procuring entity shall conduct covered procurement in a transparent and impartial manner that avoids conflicts of interest and prevents corruptive practices and that is consistent with this Chapter.
Rules of origin
6. For purposes of covered procurement, no Party may apply rules of origin to goods or services imported from or supplied by 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.
Article 44. Publication of Procurement Information
1. Each Party shall:
(a) promptly publish any law, regulation, judicial decision, administrative ruling of general application, standard contract clauses that is mandated by a law or regulation and is incorporated by reference in notices and tender documentation and procedure regarding covered procurement, and any modifications thereof, in officially designated electronic or paper medium that is widely disseminated and remains readily accessible to the public;
(b) provide an explanation thereof to any Party, on request;
(c) list in Appendix II of ANNEX 1 to this Agreement, the electronic or paper media in which the Party publishes the information described in point (a);
(d) list in Appendix III of ANNEX 1 to this Agreement, the electronic media in which the Party publishes the notices required by Articles 45, 47(4) and 55(2). 2
2. Each Party shall promptly notify the other Party of any modification to the Party's information listed in Appendix II or III of ANNEX 1 to this Agreement.
Article 45. Publication of Notices
Notice of Intended Procurement
1. For each covered procurement, except in the circumstances described in Article 52, a procuring entity shall publish a notice of intended procurement in the appropriate media listed in Appendix III of ANNEX 1 to this Agreement. Each such notice shall include the information set out in Appendix IV of ANNEX 1 to this Agreement. These notices shall be accessible by electronic means free of charge through a single point of access.
Summary Notice
2. 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 one of the WTO languages. The summary notice shall contain at least the following information:
(a) the subject-matter of the procurement;
(b) the final date for the submission of tenders or, where applicable, any final date for the submission of requests for participation in the procurement or for inclusion on a multi-use list; and
(c) the address from which documents relating to the procurement may be requested.
Notice of Planned Procurement
3. Procuring entities are encouraged to publish as early as possible in each fiscal year a notice regarding their future procurement plans (hereinafter referred to as a "notice of planned procurement"). The notice should include the subject-matter of the procurement and the planned date of the publication of the notice of intended procurement.
4. A procuring entity listed in Sub-Annex 2 of Appendix I of ANNEX 1 to this Agreement may use a notice of planned procurement as a notice of intended procurement provided that it includes as much of the information in Appendix IV of ANNEX 1 to this Agreement as is available and a statement that interested suppliers should express their interest in the procurement to the procuring entity.
Article 46. Conditions for Participation
1. A procuring entity shall limit the conditions for participation in a 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.
2. In assessing whether a supplier satisfies the conditions for participation, a procuring entity:
(a) shall evaluate the financial, 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;
(b) 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 a given Party; and
(c) may require relevant prior experience where essential to meet the requirements of the procurement.
3. In making this assessment, the procuring entity shall base its evaluation on the conditions that it has specified in advance in notices or tender documentation.
4. A procuring entity must exclude a supplier on grounds such as bankruptcy, false declarations, significant deficiencies in performance of any substantive requirement or obligation under a prior contract or contracts, judgments in respect of serious crimes or other judgments in respect of serious public offences, professional misconduct or failure to pay taxes.
Article 47. Qualification of Suppliers
Selective tendering
1. Where a procuring entity intends to use selective tendering, the entity shall:
(a) include in the notice of intended procurement at least the information specified in Points 1, 2, 6, 7, 10, and 11 of Appendix IV of ANNEX 1 to this Agreement and invite suppliers to submit a request for participation; and
(b) provide by the commencement of the time-period for tendering, at least the information in points 3, 4, 5, 8 and 9 of Appendix IV of ANNEX 1 to this Agreement to the qualified suppliers that it notifies as specified in paragraph 2, point (b) of Appendix VI of ANNEX 1 to this Agreement.
2. A procuring entity shall recognise as qualified suppliers any domestic suppliers and any suppliers of the other Party that meets the conditions for participation 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.
3. Where the tender documentation is not made publicly available from the date of publication of the notice referred to in paragraph 1, a procuring entity shall ensure that those documents are made available at the same time to all qualified suppliers selected in accordance with paragraph 2.
Sub-Annex 2 entities
4. A procuring entity covered under Sub-Annex 2 of Appendix I of ANNEX 1 to this Agreement may maintain a multi-use list of suppliers, provided that a notice inviting interested suppliers to apply for inclusion in the list is published annually, and where published by electronic means, made available continuously in the appropriate medium listed in Appendix III of ANNEX 1 to this Agreement. Such a notice shall include the information set out in Appendix V of ANNEX 1 to this Agreement.
5. Notwithstanding paragraph 4, where a multi-use list will be valid for three years or less, a procuring entity covered under Sub-Annex 2 of Appendix I of ANNEX 1 to this Agreement may publish a notice referred to in that paragraph only once, at the beginning of the period of validity of the list, provided that the notice states the period of validity and that further notices will not be published.
6. A procuring entity covered under Sub-Annex 2 of Appendix I of ANNEX 1 to this Agreement 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 short time.
A procuring entity covered under Sub-Annex 2 of Appendix I of ANNEX 1 to this Agreement may use a notice inviting suppliers to apply for inclusion in a multi-use list as a notice of intended procurement, provided that:
(a) the notice is published in accordance with paragraph 4 and includes the information required by Appendix V of ANNEX 1 to this Agreement and as much of the information required by Appendix IV of ANNEX 1 to this Agreement as is available and contains a statement that it constitutes a notice of intended procurement;
(b) the entity promptly provides to suppliers that have expressed an interest to the entity in a given procurement, sufficient information to permit them to assess their interest in the procurement, including all remaining information required by Appendix IV of ANNEX 1 to this Agreement, to the extent that such information is available.
7. A procuring entity covered under Sub-Annex 2 of Appendix I of ANNEX 1 to this Agreement may allow a supplier that has applied for inclusion on a multi-use list in accordance with paragraph 6 to tender in a given procurement, where there is sufficient time for the procuring entity to examine whether the supplier satisfies the conditions for participation.
8. A procuring entity covered under Sub-Annex 2 of Appendix I of ANNEX 1 to this Agreement shall promptly inform any supplier that submits a request for participation or application for inclusion on a multi-use list of the procuring entity's decision with respect to the request.
9. Where a procuring entity covered under Sub-Annex 2 of Appendix I of ANNEX 1 to this Agreement rejects a supplier's request to qualify or 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 48. Technical Specifications
1. 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 international trade.
2. In prescribing the technical specifications for the goods or services being procured, a procuring entity shall, where appropriate:
(a) set out the technical specifications in terms of performance and functional requirements, rather than design or descriptive characteristics; and
(b) base the technical specifications on international or European standards, where these exist; otherwise, on national technical regulations, recognised national standards or building codes.
3. Where design or descriptive characteristics are used in the technical specifications, a procuring entity shall indicate, where appropriate, that it will consider tenders of equivalent goods or services that demonstrably fulfil the requirements of the procurement by including such words as "or equivalent" in the tender documentation.
4. 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.
5. 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 of adoption of any technical specification for a specific procurement from a person that may have a commercial interest in the procurement.
6. Each Party, including its procuring entities, may, in accordance with this Article, prepare, adopt or apply technical specifications to promote the conservation of natural resources or protect the environment.
Article 49. Tender Documentation
1. A procuring entity shall provide 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 issues set out in Appendix VIII of ANNEX 1 to this Agreement.
2. A procuring entity shall promptly provide, on request, the tender documentation to any supplier participating in the procurement and shall reply to any reasonable request for relevant information by a supplier participating in the procurement, provided that such information does not give that supplier an advantage over its competitors in the procurement.
3. Where, 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 a notice or tender documentation, it shall transmit in writing all such modifications or amended or re-issued notice or tender documentation:
(a) to all suppliers that are participating at the time the information is amended, if known, and in all other cases, in the same manner as the original information; and
(b) in adequate time to allow such suppliers to modify and re-submit amended tenders, as appropriate.
Article 50. Time Periods
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 for transmitting tenders from foreign as well as domestic points where electronic means are not used. Such time-periods, including any extension of the time-periods, shall be the same for all interested or participating suppliers. The applicable time periods are set out in Appendix VI of ANNEX 1 to this Agreement.
Article 51. Negotiations
1. A Party may provide for its procuring entities to conduct negotiations:
(a) in the context of procurements in which they have indicated such intent in the notice of intended procurement; or
(b) were it appears from the evaluation that no one tender is obviously the most advantageous in terms of the specific evaluation criteria set forth in the notices or tender documentation.
2. A procuring entity shall:
(a) ensure that any elimination of suppliers participating in negotiations is carried out in accordance with the evaluation criteria set out in the notices or tender documentation; and
(b) where negotiations are concluded, provide a common deadline for the remaining suppliers to submit any new or revised tenders.
Article 52. Limited Tendering
A procuring entity may use limited tendering and may choose not to apply Articles 45 to 47, 49 to 51, 53 and 54 only under the following conditions:
(a) where
(i) no tenders were submitted, or no suppliers requested participation;
(ii) no tenders that conform to the essential requirements of the tender documentation were submitted;
(iii) no suppliers satisfied the conditions for participation; or
(iv) the tenders submitted have been collusive, provided that the requirements of the tender documentation are not substantially modified;
(b) where the goods or services can be supplied only by a particular supplier and no reasonable alternative or substitute goods or services exist because the requirement is a work of art; due to the protection of patents, copyrights or other exclusive rights; or due to the absence of competition for technical reasons;
(c) for additional deliveries by the original supplier of goods and services that were not included in the initial procurement where a change of supplier for such additional goods or services:
(i) 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
(ii) would cause significant inconvenience or substantial duplication of costs for the procuring entity;
(d) in so far as is strictly necessary where, 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;
(e) for goods purchased on a commodity market;
(f) where 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;
(g) for purchases made under exceptionally advantageous conditions which only arise in the very short term in the case of unusual disposals such as arising from liquidation, receivership or bankruptcy and not for routine purchases from regular suppliers; and
(h) where 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, and the participants are judged by an independent jury with a view to a design contract being awarded to a winner.
Article 53. Electronic Auctions
Where a procuring entity intends to conduct a covered procurement using an electronic auction, the entity shall provide each participant, before commencing the electronic auction, with:
(a) 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;
(b) the results of any initial evaluation of the elements of its tender where the contract is to be awarded on the basis of the most advantageous tender and
(c) any other relevant information relating to the conduct of the auction.
Article 54. Treatment of Tenders and Award of Contracts
7. A procuring entity shall not use options, cancel a procurement or modify awarded contracts in a manner that circumvents the obligations under this Agreement.