(i) for the specific purpose of providing international assistance, including development aid;
(ii) under a 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 a 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;
(f) procurement of a good or service outside the territory of the Party or the procuring entity, for consumption outside the territory of that Party.
Valuation
4. In estimating the value of 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 use a particular method for estimating the value of a procurement with the intention of totally or partially excluding it from the application of this Chapter;
(b) include the estimated maximum total value of the procurement over its entire duration, taking into account all forms of remuneration, including any premiums, fees, commissions, interest and, where the procurement provides for the possibility of option clauses, the total value of such options;
(c) for any contract awarded at the same time or over a given period to one or more suppliers under the same procurement base its calculation of the total maximum value of the procurement over its entire duration; (19) and
(d) where domestic laws and regulations allow for contracts to be concluded for an indefinite period and a total price is not specified, the basis for valuation of such contracts shall be based on the estimated monthly instalment multiplied by 48.
Article 10.2. Definitions
1. For the purposes of this Chapter:
(a) "commercial goods or services" means goods or services of a type generally sold or offered for sale in the commercial marketplace to, and customarily purchased by, non-governmental buyers for non-governmental purposes;
(b) "construction service" means a service that has as its objective the realisation by whatever means of civil or building works, as described in Appendix 6 (Construction Services);
(c) "days" means calendar days;
(d) "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;
(e) "in writing or written" means any worded or numbered expression that can be read, reproduced, and may be communicated later, including electronically transmitted and stored information;
(f) "limited tendering" means a procurement method whereby the procuring entity contacts a supplier or suppliers of its choice;
(g) "measure" means any law, regulation, procedure, administrative guidance or practice, or any action as determined by a Party, including its procuring entities, relating to a covered procurement;
(h) "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;
(i) "notice of intended procurement" means a notice published by a procuring entity inviting interested suppliers to submit a request for participation, a tender, or both;
(j) "notice of planned procurement" means a notice published by a procuring entity regarding its future procurement plans;
(k) "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 actions or requirements;
(l) "open tendering" means a procurement method where all interested suppliers may submit a tender;
(m) "person" means a natural person or a juridical person;
(n) "procuring entity" means an entity covered under Appendices 1 to 3 (Entities at Central Government Level, Entities at Sub-Central Government Level and Other Covered Entities) to Annex XX (Government Procurement);
(o) "qualified supplier" means a supplier that a procuring entity recognises as having satisfied the conditions for participation;
(p) "selective tendering" means a procurement method whereby only qualified suppliers are invited by the procuring entity to submit a tender;
(q) "services" includes construction services, unless otherwise specified;
(r) "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;
(s) "supplier" means a person or group of persons that provides or could provide goods or services;
(t) "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 10.3. Security and General Exceptions
1. 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.
2. The Parties understand that paragraph 1 includes procurement indispensable for the maintenance or restoration of international peace.
3. Subject to the requirement that such measures are 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 trade between the Parties, nothing in this Chapter shall be construed to prevent a 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.
4. The Parties understand that subparagraph 3 (b) includes environmental measures necessary to protect human, animal, or plant life or health.
Article 10.4. National Treatment and Non-Discrimination
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 another Party and to the suppliers of another Party offering such goods or services, treatment no less favourable than the treatment accorded to domestic goods, services and suppliers. For greater certainty, this obligation refers only to the treatment accorded by a Party to any good, service or supplier of another Party under this Agreement.
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; or
(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 another Party.
3. 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 10.5. Use of Electronic Means
1. The Parties shall seek to provide opportunities for covered procurement to be undertaken through electronic means, including the publication of procurement information, notices, and tender documentation, and for the receipt of tenders.
2. 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 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 of receipt and the prevention of inappropriate access.
Article 10.6. Conduct of Procurement
A procuring entity shall conduct covered procurement in a transparent and impartial manner that:
(a) is consistent with this Chapter, using methods such as open tendering, selective tendering, and limited tendering;
(b) avoids conflicts of interest; and
(c) prevents corrupt practices.
Article 10.7. Rules of Origin
For the purposes of covered procurement, no Party may apply rules of origin to goods or services imported from or supplied by another Party that are different from the rules of origin the Party applies at the same time in the normal course of trade.
Article 10.8. Offsets
With regard to covered procurement, a Party, including its procuring entities, shall not seek, take account of, impose or enforce any offset.
Article 10.9. Information on the Procurement System
1. Each Party shall promptly publish any measure of general application regarding covered procurement and any modification to this information, in an officially designated electronic or paper medium that is widely disseminated and remains readily accessible to the public.
2. Each Party shall list in Appendix 7 (Means of Publication) to Annex XX (Government Procurement) the paper or the electronic means through which the Party publishes the information described in paragraph 1 and the notices required by Article the paper or the electronic means through which the Party publishes the information described in paragraph 1 and the notices required by Article 10.10 (Notices), Article 10.12 (Qualification of Suppliers) and Article 10.22 (Transparency of Procurement Information).
3. Each Party shall, on request, provide to another Party an explanation relating to such information.
Article 10.10. Notices
1. For each covered procurement, a procuring entity shall publish a notice of intended procurement, except in the circumstances referred to in Article 10.17 (Limited Tendering). The notice shall be published in the electronic or paper medium listed in Appendix 7 (Means of Publication) to Annex XX (Government Procurement).
2. Such medium shall:
(a) be widely disseminated and the notice shall remain accessible, at least, until expiration of the time period indicated in the notice or the deadline for submission of the tender.
b) for procuring entities covered under Appendix 1 (Entities at Central Government Level) to Annex XX (Government Procurement) be accessible by electronic means free of charge through a single point of access; and
(c) for procuring entities covered under Appendices 2 or 3 (Entities at Sub-Central Government Level and Other Covered Entities) to Annex XX (Government Procurement), where accessible by electronic means, be provided, at least through links in a gateway electronic site that is accessible free of charge.
3. The Parties, including their procuring entities covered under Appendix 2 (Entities at Sub-Central Government Level) or Appendix 3 (Other Covered Entities) to Annex XX (Government Procurement), are encouraged to publish their notices by electronic means free of charge through a single point of access.
4. Except as otherwise provided in this Chapter, each notice of intended 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 intended 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 their cost and terms of payment, if any;
(b) a description of the procurement, including the nature and the quantity of the goods or services to be procured or, where the quantity is not known, the estimated quantity;
(c) a description of any options;
(d) the timeframe for delivery of goods or services or the duration of the contract;
(e) the procurement method that will be used and whether it will involve negotiation or electronic auction;
(f) where applicable, the address and any final date for the submission of requests for participation in the procurement;
(g) the address and the final date for the submission of tenders;
(h) 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;
(i) 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;
(j) where, pursuant to Article 10.12 (Qualification of Suppliers), 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, where applicable, any limitation on the number of suppliers that will be permitted to tender;
(k) an estimate, if possible, of the timing of subsequent notices of intended procurement for any contract awarded at the same time or over a given period to one or more suppliers under the same procurement; and
(l) an indication that the procurement is covered by this Chapter, unless that indication is publicly available through information published pursuant to Article 10.9 (Information on the Procurement System).
5. Procuring entities are encouraged to publish in the appropriate paper or electronic medium listed in Appendix 7 (Means of Publication) to Annex XX (Government Procurement), as early as possible in each fiscal year, a notice regarding their future procurement plans. 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.
6. A procuring entity covered under Appendix 2 (Entities at Sub-Central Government Level) or Appendix 3 (Other Covered Entities) to Annex XX (Government Procurement) may use a notice of planned procurement as a notice of intended procurement, provided that the notice of planned procurement includes any 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 10.11. Conditions for Participation
1. In establishing the conditions for participation and assessing whether a supplier satisfies such conditions, a Party, including its procuring entities:
(a) 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;
(b) 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;
(c) shall base its evaluation solely on the conditions that the procuring entity has specified in advance in notices or tender documentation;
(d) 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
(e) may require relevant prior experience where essential to meet the requirements of the procurement.
2. Where there is supporting evidence, 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 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) grave professional misconduct or acts or omissions that adversely reflect upon the commercial integrity of the supplier; or
(f) failure to pay taxes.
Article 10.12. 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.
2. No Party, including its procuring entities, shall:
(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 another Party in its procurement; or
(b) use such registration system or qualification procedure to prevent or delay the inclusion of suppliers of other Parties on a list of suppliers or prevent those suppliers from being considered for a particular procurement.
Selective tendering
3. 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 subparagraphs 3 (a), 3(b), 3 (f), 3 (g), 3 (j), and 3 (k) of Article 10.10 (Notices) 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 subparagraphs 3 (d), 3 (e), 3 (h), 3 (i) and 3 (k) of Article 10.10 (Notices) to the qualified suppliers that it notifies as specified in subparagraph 2 (b) of Appendix 8 (Time Periods) to Annex XX (Government Procurement).
4. Where using selective tendering, 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.
5. Where the tender documentation is not made publicly available from the date of publication of the notice referred to in paragraph 3, 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 4.
Multi-Use Lists
6. A procuring entity may establish or maintain a multi-use list of suppliers, provided that a notice inviting interested suppliers to apply for inclusion on the list is published annually in the appropriate medium listed in Appendix 7 (Means of Publication) to Annex XX (Government Procurement), or, is made available continuously in the electronic medium listed in Appendix 7 (Means of Publication) to Annex XX (Government Procurement). Where a multi-use list will be valid for three years or less, a procuring entity may publish the notice only once, at the beginning of the period of validity of the list.
7. The notice provided for in paragraph 6 shall include:
(a) a description of the goods or services, or categories thereof, for which the list may be used;
(b) 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;
(c) 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
(d) period of validity of the list and the means for its renewal or termination, or where 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.
8. A procuring entity shall allow suppliers to apply at any time for inclusion on a multi-use list and shall include on that list all qualified suppliers within a reasonably period of time.
Information on Procuring Entity Decisions
9. A procuring entity or other entity of a Party shall promptly inform any supplier that submits a request for participation in a procurement or application for inclusion on a multi-use list of the decision with respect to the request or application.
10. If a procuring entity or other entity of a Party rejects a supplier?s request for participation 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 reason for its decision.
Article 10.13. Tender Documentation
1. 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 for in the notice of intended procurement, such documentation shall include a complete description of:
(a) the procurement, including the nature and the quantity of the goods or services to be procured or, where 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;
(b) 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;
(c) all evaluation criteria the entity will apply in the awarding of the contract, and, except where price is the sole criterion, the relative importance of such criteria;
(d) where 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;
(e) where 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;
(f) where there will be a public opening of tenders, the date, time and place for the opening and, where appropriate, the persons authorised to be present;
(g) 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
(h) any dates for the delivery of goods or the supply of services.
2. Where procuring entities do not offer free direct access to the entire tender documents and any supporting documents by electronic means, entities shall make promptly available the tender documentation at the request of any interested supplier of the Parties. The procuring entities shall also promptly 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.
Article 10.14. Technical Specifications
1. A procuring entity shall not prepare, adopt or apply any technical specification nor prescribe any conformity assessment procedure with the purpose or the effect of creating unnecessary obstacles to trade between the Parties.
2. In prescribing the technical specifications for the goods or services being procured, a procuring entity shall, where appropriate:
(a) set out the technical specification in terms of performance and functional requirements, rather than design or descriptive characteristics; and
(b) base the technical specification on international standards, where such exist or 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 should indicate, where 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.
4. A procuring entity shall not prescribe any technical specifications that require or refer to a particular trademark or trade name, patent, copyright, design or 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 or adoption of any technical specification for a specific procurement from a person that may have a commercial interest in the procurement.
6. For greater certainty, a 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.
7. For greater certainty, a procuring entity may conduct market research in developing specifications for a particular procurement.
8. For greater certainty, this Chapter is not intended to preclude a Party, or its procuring entities, from preparing, adopting or applying technical specifications required to protect sensitive government information, including specifications that may affect or limit the storage, hosting or processing of such information outside the territory of the Party.