(c) reply to any reasonable request for relevant information by an interested or participating supplier, provided that the information does not give that supplier an advantage over other suppliers.
Modifications
12. If, prior to the award of a contract, a procuring entity modifies the criteria or requirements set out in a notice of intended procurement or tender documentation provided to a participating supplier, or amends or reissues a notice or tender documentation, it shall transmit in writing all those modifications or the amended or re-issued notice or tender documentation:
(a) to all suppliers that are participating in the procurement at the time of the modification, amendment or re-issuance, if those suppliers are known to the procuring entity, and in all other cases, in the same manner as the original information was made available; and
(b) in adequate time to allow those suppliers to modify and re-submit their initial tenders, as appropriate.
Preliminary Market Research and Engagement
13. For greater certainty, a procuring entity may, prior to publication of a notice of intended procurement, conduct market research and engagement with suppliers with a view to informing and developing technical specifications and other tender documentation for a particular procurement or informing suppliers ofits procurement plans and requirements. A procuring entity shall take appropriate steps to ensure that suppliers participating in that market research or engagement do not gain an unfair advantage over other interested suppliers.
Article 16.10. Time-Periods
General
1. 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 factors such as:
(a) the nature and complexity of the procurement;
(b) the extent of subcontracting anticipated; and
(c) the time necessary for transmitting tenders by non-electronic means from foreign as well as domestic points if electronic means are not used.
Deadlines
2. 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. Ifa state of urgency duly substantiated by the procuring entity renders this time-period impracticable, the time-period may be reduced to no less than 10 days.
3. Except as provided for in paragraphs 4, 5, 8 and 9 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:
(a) in the case of open tendering, the notice of intended procurement is published; or
(b) in the case of selective tendering, the procuring entity notifies the suppliers that they will be invited to submit tenders, whether or not it uses a multi-use list.
4. A procuring entity may reduce the time-period for tendering set out in paragraph 3 to no less than 10 days if:
(a) the procuring entity has published a notice of planned procurement under Article 16.6 (Notices) at least 40 days and no more than 12 months in advance of the publication of the notice of intended procurement, and the notice of planned procurement contains:
(i) a description of the procurement;
(ii) the approximate final dates for the submission of tenders or requests for participation;
(iii) a statement that interested suppliers should express their interest in the procurement to the procuring entity;
(iv) the address from which documents relating to the procurement may be obtained; and
(v) as much of the information that is required for the notice of intended procurement under paragraph 3 of Article 16.6 (Notices) as is available;
(b) 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
(c) a state of urgency duly substantiated by the procuring entity renders the time period for tendering set out in paragraph 3 impracticable.
5. A procuring entity may reduce the time-period for tendering set out in paragraph 3 by five days for each one of the following circumstances:
(a) the notice of intended procurement is published by electronic means;
(b) the tender documentation is made available by electronic means from the date of the publication of the notice of intended procurement; and
(c) the procuring entity accepts tenders by electronic means.
6. The use of paragraph 5, in conjunction with paragraph 4, shall in no case result in the reduction of the time-period for tendering set out in paragraph 3 to less than 10 days from the date on which the notice of intended procurement is published.
7. A procuring entity shall require all interested or participating suppliers to submit requests for participation or tenders in accordance with a common deadline. These time periods, and any extension of these time periods, shall be the same for all interested or participating suppliers.
8. 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 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.
9. If a procuring entity covered under Sections B (Sub-Central Government Entities) or C (Other Entities) of a Party's Schedule to Annex 16A has selected all or a limited number of qualified suppliers, the time-period for tendering may be fixed by agreement between the procuring entity and the selected suppliers. In the absence of agreement, the period shall not be less than 10 days.
Article 16.11. Negotiations
1. A Party may provide for its procuring entities to conduct negotiations if:
(a) the procuring entity has indicated its intent to conduct negotiations in the notice of intended procurement required under paragraph 2 of Article 16.6 (Notices); or
(b) 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.
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 notice of intended procurement or tender documentation; and
(b) when negotiations are concluded, provide a common deadline for the remaining participating suppliers to submit any new or revised tenders.
Article 16.12. Limited Tendering
1. 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 16.6 (Notices) through 16.8 (Qualification of Suppliers), paragraphs 8 through 12 of Article 16.9 (Technical Specifications and Tender Documentation), and Articles 16.10 (Time-Periods), 16.11 (Negotiations), 16.13 (Electronic Auctions) and 16.14 (Treatment of Tenders and Awarding of Contracts) only under any of the following circumstances:
(a) if:
(i) no tenders were submitted or no suppliers requested participation;
(ii) no tenders were submitted that conform to the essential requirements in the tender documentation;
(iii) no suppliers satisfied the conditions for participation; or
(iv) the tenders submitted were collusive,
provided that the requirements of the tender documentation are not substantially modified;
(b) if the good or service can be supplied only by a particular supplier and no reasonable alternative or substitute good or service exists for any of the following reasons:
(i) the requirement is for a work of art;
(ii) the protection of patents, copyrights or other exclusive rights; or
(iii) due to an absence of competition for technical reasons;
(c) 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 those additional goods or services:
(i) cannot be made for technical reasons such as requirements of interchangeability or interoperability with existing equipment, software, services or installations procured under the initial procurement; and
(i) would cause significant inconvenience or substantial duplication of costs for the procuring entity;
(d) for goods purchased on a commodity market;
(e) if a procuring entity procures a prototype or a first good or service that is intended for limited trial or 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 prototype or 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 prototype of the first 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. Subsequent procurements of these newly developed goods or services, however, shall be subject to this Chapter;
(f) 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, bankruptcy or receivership, but not for routine purchases from regular suppliers;
(g) if a contract is awarded to a winner of a design contest provided that:
(i) the contest has been organised in a manner that is consistent with this Chapter; and
(ii) the contest is judged by an independent jury with a view to award a design contract to the winner; or
(h) in so far as is strictly necessary if, for reasons of extreme urgency brought about by events unforeseeable by the procuring entity, the good or service could not be obtained in time by means of open or selective tendering.
2. A procuring entity shall prepare a report in writing on each contract awarded under paragraph 1. The report shall include the name of the procuring entity, the value and kind of good or service procured, and a statement that indicates the circumstances and conditions described in paragraph 1 that justified the use of limited tendering.
Article 16.13. Electronic Auctions
If 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 if 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 16.14. Treatment of Tenders and Awarding of ContractsTreatment of Tenders
1. 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.
2. 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.
3. If a procuring entity provides a supplier with an opportunity to correct unintentional errors of form between the opening of tenders and the awarding of the contract, the procuring entity shall provide the same opportunity to all participating suppliers.
Awarding of Contracts
4. 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 who satisfies the conditions for participation.
5. Unless a procuring entity determines that it is not in the public interest to award a contract, it shall award the contract to the supplier that the procuring entity has determined to be capable of fulfilling the terms of the contract and that, based solely on the evaluation criteria specified in the notice and tender documentation, submits:
(a) the most advantageous tender; or
(b) if price is the sole criterion, the lowest price.
6. 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.
7. A procuring entity shall not use options, cancel a covered procurement, or modify or terminate awarded contracts in a manner that circumvents the obligations of this Chapter.
Article 16.15. Transparency of Procurement
InformationInformation Provided to Suppliers
1. A procuring entity shall promptly inform participating suppliers of the contract award decision and, on the request of a supplier, shall do so in writing. Subject to paragraphs 2 and 3 of Article 16.16 (Disclosure of Information), 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
2. Not later than 72 days after the award of each contract covered by this Chapter, a procuring entity shall publish a notice in an appropriate electronic medium listed in Annex 16A and the information shall remain readily accessible for a reasonable period of time. The notice shall include at least the following information:
(a) a description of the good or service procured;
(b) the name and address of the procuring entity;
(c) the name and address of the successful supplier;
(d) the value of the successful tender or the highest and lowest offers taken into account in the award of the contract;
(e) the date of award; and
(f) the procurement method used, and in cases where limited tendering was used in accordance with Article 16.12 (Limited Tendering), a description of the circumstances justifying the use of limited tendering.
Maintenance of Documentation, Reports and Electronic Traceability
3. Each procuring entity shall, for a period of at least three years from the date it awards a contract, maintain:
(a) the documentation and reports of tendering procedures and contract awards relating to covered procurement, including the reports required under Article 16.12 (Limited Tendering); and
(b) data that ensure the appropriate traceability of the conduct of covered procurement by electronic means.
Article 16.16. Disclosure of Information
Provision of Information to Parties
1. 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 agreement of the Party that provided the information.
Non-Disclosure of Information
2. 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.
3. Nothing in this Chapter shall be construed to require a Party, including its procuring entities, authorities and review bodies, to disclose confidential information if that disclosure:
(a) would impede law enforcement;
(b) might prejudice fair competition between suppliers;
(c) would prejudice the legitimate commercial interests of particular persons, including the protection of intellectual property; or
(d) would otherwise be contrary to the public interest.
Article 16.17. Environmental, Social and Labour Considerations
A Party, including its procuring entities, may:
(a) take into account environmental, social and labour considerations throughout the procurement procedure, provided they are:
(i) based on objectively verifiable criteria;
(ii) non-discriminatory; and
(iii) indicated in the notice of intended procurement or tender documentation; and
(b) take appropriate measures to ensure compliance with its obligations in the fields of environmental, social and labour law, provided they are non-discriminatory.
Article 16.18. Ensuring Integrity In Procurement Practices
1. Each Party shall ensure that criminal or administrative measures exist to address corruption, fraud, and other illegal acts in its government procurement.
2. These measures may include procedures to render ineligible for, or exclude from, participation in the Party's procurements, either indefinitely or for a stated period of time, suppliers that the Party has determined to have engaged in corrupt, fraudulent or other illegal acts in relation to government procurement in the Party's territory. When applying those procedures, each party, including its procuring entities:
(a) may consider the gravity of the supplier's acts or omissions, and any remedial measures or mitigating factors; and
(b) shall treat a supplier of the other Party with due process, in accordance with its government procurement policies and frameworks.
3. Each Party shall also ensure that it has in place policies and procedures to eliminate to the extent possible or manage any potential conflict of interest on the part of those engaged in or having influence over a procurement.
4. Each Party may put in place policies or procedures that require successful suppliers to maintain and enforce appropriate measures, such as internal controls, business ethics, and compliance programmes, for preventing and detecting corruption, fraud, and other illegal acts, provided they are non-discriminatory.
Article 16.19. Domestic Review Procedures
1. Each Party shall maintain, establish or designate at least one impartial administrative or judicial authority ("review authority") that is independent of its procuring entities to review, in a non-discriminatory, timely, transparent and effective manner, a challenge or complaint ("complaint") by a supplier that there has been:
(a) a breach of this Chapter; or
(b) if the supplier does not have a right to directly challenge a breach of this Chapter under the law of a Party, a failure of a procuring entity to comply with the Party's measures implementing this Chapter, arising in the context ofa covered procurement, in which the supplier has, or had, an interest. The procedural rules for all complaints shall be in writing and made generally available.
2. In the event of a complaint by a supplier, arising in the context of covered procurement in which the supplier has, or 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 procuring entity and the supplier to seek resolution of the complaint through consultations. The procuring entity shall accord impartial and timely consideration to the complaint in a manner that is not prejudicial to the supplier's participation in ongoing or future procurement or to its right to seek corrective measures under the administrative or judicial review procedure.
3. Each supplier shall be allowed a sufficient period of time to prepare and submit a challenge, which in no case shall be less than 10 days from the time when the basis of the challenge became known or reasonably should have become known to the supplier.
4. If a body other than the review authority initially reviews a complaint, the Party shall ensure that the supplier may appeal the initial decision to the review authority that is independent of the procuring entity whose procurement is the subject of the complaint.
5. If the review authority has determined that there has been a breach or a failure as referred to in paragraph 1, a Party may limit compensation for the loss or damages suffered to either the costs reasonably incurred in the preparation of the tender or in bringing the complaint, or both.
6. 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:
(a) a procuring entity shall respond in writing to a supplier's complaint and provide all relevant documents to the review authority;
(b) a supplier that initiates a complaint shall be provided an opportunity to reply to the procuring entity's response before the review authority takes a decision on the complaint;
(c) the participants shall have the right to be represented and accompanied;
(d) the participants shall have access to all proceedings;
(e) the participants shall have the right to request that the proceedings take place in public and that witnesses may be presented; and
(f) the review authority shall provide its decisions or recommendations in a timely fashion, in writing, with an explanation of the basis for each decision or recommendation.
7. Each Party shall adopt or maintain procedures that provide for:
(a) prompt interim measures to preserve the supplier's opportunity to participate in the procurement; and
(b) corrective action that may include compensation under paragraph 5.
The procedures may provide that overriding adverse consequences for the interests concerned, including the public interest, may be taken into account when deciding whether those measures should be applied. Just cause for not acting shall be provided in writing.
Article 16.20. Modifications and Rectifications to Annex
A Party may modify or rectify its Schedule to Annex 16A, pursuant to paragraphs 2 through 10.
Notification of Proposed Modification
2. A Party shall notify any proposed modification or rectification (collectively referred to as a "modification") to its Schedule to Annex 16A in writing to the other Party.
3. The notification of proposed modification shall contain:
(a) for any proposed withdrawal of an entity from its Schedule to Annex 16A in exercise of its rights on the grounds that government control or influence over the procuring entity's covered procurement has been effectively eliminated, evidence of that elimination; or
(b) for any other proposed modification, information as to the likely consequences of the change for the coverage provided for in this Chapter; and
(c) a proposal for any necessary compensatory adjustments pursuant to paragraph 4.
Compensatory Adjustments
4. Subject to paragraphs 5 and 6, a Party shall provide appropriate compensatory adjustments for a change in coverage, if necessary, to maintain a level of coverage comparable to the coverage that existed prior to the modification.
5. The Parties may agree another form of resolution as an alternative to compensatory adjustments.