1. Where, prior to the award of a contract, a procuring entity modifies the evaluation criteria or requirements set out in a notice of intended procurement or tender documentation provided to participating suppliers, or amends or reissues a notice or tender documentation, it shall publish or provide those modifications, amended or re-issued notice or tender documentation:
(a) to all suppliers that are participating at the time of the modification, amendment or re-issuance, if known, and in all other cases, in the same manner as the original information was made available; and
(b) in adequate time to allow such suppliers to modify and re-submit amended tenders, as appropriate.
Article 10.16. Time Periods
A procuring entity shall, consistent with its own reasonable needs, provide suppliers sufficient time to prepare and submit requests for participation and responsive tenders, taking into account in particular the nature and complexity of the procurement. Each Party shall apply time periods according to the conditions specified in Appendix 8 (Time Periods) to Annex XX (Government Procurement).
Such time periods, including any extension of the time periods, shall be the same for all interested or participating suppliers.
Article 10.17. 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 another Party or protects domestic suppliers, a procuring entity may use limited tendering and may choose not to apply Articles 10.10 (Notices), 10.11 (Conditions for Participation), 10.12 (Qualification of Suppliers), 10.13 (Tender Documentation), 10.16 (Time Periods), 10.18 (Electronic Auctions), 10.19 (Negotiations), 10.20 (Treatment of Tenders) and 10.21 (Awarding of Contracts) only under the following circumstances:
(a) where:
(i) no tenders were submitted, or no supplier 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 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 or its authorised agents, of goods and services that were not included in the initial procurement where a change of supplier for such additional goods and 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 to the procuring entity;
(d) insofar as 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 an open or selective tendering procedure;
(e) for goods purchased on a commodity market;
(f) where 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 first good
or service may include limited production or supply in order to incorporate the results of field testing and to demonstrate that the good or service is suitable for production or supply in quantity to acceptable quality standards, but does not include quantity production or supply to establish commercial viability or to recover research and development costs. Subsequent procurements of these newly developed goods or services, however, shall be subject to this Chapter;
(g) for purchases made under exceptionally advantageous conditions that only arise in the very short term in the case of unusual disposals such as those arising from liquidation, receivership, or bankruptcy, but not for routine purchases from regular suppliers; or
(h) where 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 the principles of this Chapter, in particular relating to the publication of a notice of intended procurement; and
(ii) the participants are judged by an independent jury with a view to a design contract being awarded to a winner.
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 goods or services procured, and a statement indicating the circumstances and conditions described in paragraph 1 that justified the use of limited tendering.
Article 10.18. Electronic Auctions
1. 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 10.19. Negotiations
1. A Party may provide for its procuring entities to conduct negotiations in the context of covered procurement:
(a) where the entity has indicated such intent in the notice of intended procurement pursuant to Article 10.10 (Notices); or
(b) where it appears from the evaluation that no one 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) where negotiations are concluded, provide a common deadline for the remaining participating suppliers to submit any new or revised tenders.
Article 10.20. Treatment 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 provided that the mishandling is supported by documentation.
3. Where a procuring entity provides suppliers with an opportunity to correct unintentional errors of form between the opening of tenders and the awarding of the contract, the entity shall provide the same opportunity to all participating suppliers.
Article 10.21. Awarding of Contracts
1. To be considered for award, a tender shall be submitted in writing and shall, at the time of opening, comply with the essential requirements set out in the notices and tender documentation and be submitted by a supplier that satisfies the conditions for participation.
2. Unless a procuring entity determines that it is not in the public interest to award a contract, the entity shall award the contract to the supplier that it has determined to be capable of fulfilling the terms of the contract and that, based solely on the evaluation criteria specified in the notices and tender documentation, has submitted:
(a) the most advantageous tender; or
(b) where price is the sole criterion, the lowest price.
3. Where 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.
4. A procuring entity shall not use option clauses, cancel a procurement or modify or terminate awarded contracts in a manner that circumvents the obligations of this Chapter.
Article 10.22. Transparency of Procurement Information
1. A procuring entity shall promptly inform participating suppliers of its contract award decisions and, on request, shall do so in writing. Subject to Article 10.23 (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.
2. No later than 72 days from the award of each contract for covered procurement, a procuring entity shall publish in a paper or electronic medium listed in Appendix 7 (Means of Publication) to Annex XX (Government Procurement), a notice that includes at least the following information about the contract:
(a) a description of the goods or services 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 type of procurement method used, and in cases where limited tendering was used pursuant to Article 10.17 (Limited Tendering), a description of the circumstances justifying the use of limited tendering.
Where the entity publishes the notice only in an electronic medium, the information shall remain readily accessible for a reasonable period of time.
3. Each procuring entity shall, for a period of at least three years from the date it awards a contract, maintain the documentation and reports of tendering procedures and contract awards relating to covered procurement, including the reports provided for in Article 10.17 (Limited Tendering), and to ensure the appropriate traceability of the conduct of covered procurement by electronic means.
Article 10.23. Disclosure of Information
1. On request of another Party, a Party shall provide promptly any information sufficient 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.
2. In cases where the release of such 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.
3. Notwithstanding any other provision of this Chapter, a Party, including its procuring entities, shall not, except to the extent required by law or with the written authorisation of the supplier that provided information, disclose information to a particular supplier that might prejudice fair competition between suppliers.
4. Nothing in this Chapter shall be construed to require a Party, including its procuring entities, authorities, and review bodies, to release confidential information under this Chapter where 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 10.24. Domestic Review Procedures for Supplier Challenges
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) breaches 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 of a covered procurement, in which the supplier has, or has 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 has had, an interest, that there has been a breach or a failure as referred to in paragraph 1, the Party of the procuring entity shall encourage that entity and the supplier to seek resolution of the complaint through consultations. The 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 its right to seek corrective measures under the administrative or judicial review procedure. Each Party shall make information on its complaint mechanisms generally available.
3. Each supplier shall be allowed a sufficient time period to prepare and submit a complaint, which in no case shall be less than ten days from the time when the basis of the complaint became known or reasonably should have become known to the supplier.
4. Where 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. Each Party shall ensure that the review authority that is not a court shall either have its decisions subject to judicial review or have procedures that provide that:
(a) the procuring entity shall respond in writing to the complaint and disclose 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; and
(c) the review authority shall make its decisions or recommendations in a timely fashion, in writing, and shall include an explanation of the basis for each decision or recommendation.
6. Each Party shall adopt or maintain procedures that provide for:
(a) rapid interim measures, pending the resolution of a complaint, to preserve the supplier?s opportunity to participate in the procurement. Such interim measures may result in the suspension of the procurement process. The procedures may provide that overriding adverse consequences for the interests concerned, including the public interest, may be taken into account when deciding whether such measures should be applied. Just cause for not acting shall be provided in writing; and
(b) where a review body has determined that there has been a breach of this Chapter or a failure as referred to in paragraph 1, corrective action or compensation for the loss or damages suffered, which may be limited to either the costs reasonably incurred for the preparation of the tender or the costs relating to the complaint, or both.
Article 10.25. Modifications and Rectifications to Coverage
1. A Party may make rectifications of a purely formal nature to its coverage under this Chapter, or minor amendments to its Schedules in Annex XX (Government Procurement), provided that it notifies the other Parties in writing and no Party objects in writing within 45 days following the date of the circulation of the notification. A Party that makes such a rectification or minor amendment need not provide compensatory adjustments to the other Parties.
2. For the purposes of this Article, rectifications of a purely formal nature and minor modifications include, but are not limited to:
(a) changes in the name of a procuring entity;
(b) the merger of one or more procuring entities listed in a Party's schedule;
(c) the separation of a procuring entity listed in a Party's schedule into two or more procuring entities that are all added to the procuring entities listed in the same section of the annex; and
(d) changes in website references.
3. A Party may otherwise modify its coverage under this Chapter provided that:
(a) it notifies the other Parties in writing and offers at the same time acceptable compensatory adjustments to maintain a level of coverage comparable to that existing prior to the modification, except where provided for in paragraph 4; and
(b) no Party objects in writing within 45 days following the date of the circulation of the notification.
4. A Party is not required to provide compensatory adjustments where the Parties agree that the proposed modification covers a procuring entity over which a Party has effectively eliminated its control or influence. If a Party objects to the assertion that such government control or influence has been effectively eliminated, the objecting Party may request further information or consultations with a view to clarifying the nature of any government control or influence and reaching agreement on the procuring entity's continued coverage under this Chapter.
5. If the modifying Party and any objecting Party resolve the objection through consultations, the modifying Party shall notify the other Parties of the resolution.
6. The Joint Committee shall modify Annex XX (Government Procurement) to reflect any agreed modification.
Article 10.26. Ensuring Integrity In Procurement Practices
Each Party shall ensure that criminal or administrative measures exist to address corruption in its government procurement. These measures may include procedures to render ineligible for participation in the Party?s procurements, either indefinitely or for a stated time period, suppliers that the Party has determined to have engaged in fraudulent or other illegal actions in relation to government procurement in the Party?s territory. 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.
Article 10.27. Small and Medium Enterprises Participation
1. The Parties recognise the importance of the participation of small and medium enterprises (SMEs) in government procurement. The Parties also recognise the importance of business alliances between suppliers of each Party, and in particular of SMEs.
2. The Parties may agree to work jointly towards exchanging information on facilitating SMEs access to government procurement procedures, methods and contracting requirements, focused on SMEs special needs.
Article 10.28. Cooperation
1. The Parties recognise the importance of cooperation with a view to achieving a better understanding of their respective government procurement systems, as well as a better access to their respective markets.
2. The Parties shall endeavour to cooperate in matters of mutual interest such as:
(a) technical assistance and capacity building in relation to the implementation of this Chapter;
(b) development and use of electronic communications in government procurement systems;
(c) facilitating participation by suppliers in government procurement, in particular, with respect to SMEs;
(d) enhancing the ability to provide multilingual access to procurement opportunities; and
(e) exchange of experiences and information, such as regulatory frameworks, best practices and statistics.
Article 10.29. Contact Points
Each Party shall, within 30 days from the date of entry into force of this Agreement for that Party, designate one or more contact points to facilitate communication pertaining to the implementation of this Chapter and notify the other Parties of the relevant details of that contact point or those contact points. Each Party shall promptly notify the other Parties of any change regarding the relevant details of its contact point or contact points.
Article 10.30. Review
The Parties shall undertake a review of this Chapter five years after the date of entry into force of this Agreement, with a view to improving the coverage, as mutually agreed by the Parties, and at least every three and a half years thereafter, unless otherwise agreed by the Parties.
Article 10.31. Transitional Measures
1. With a view to facilitate the implementation of this Chapter, Malaysia may, with the agreement of the other Parties:
(a) adopt or maintain transitional measures during a transition period; or;
(b) delay the implementation of any obligation of this Chapter, as set out in, and in accordance with, Appendix 11 (Transitional Measures) to Annex XX (Government Procurement).
2. A transitional measure shall be applied in a transparent manner that does not discriminate between the Parties.
3. After the date of entry into force of this Agreement, the Parties, on request of Malaysia, may:
(a) extend the transition period for a measure adopted or maintained under paragraph 1; or
(b) approve the adoption of a new transitional measure under paragraph 1, in special circumstances that were unforeseen.
4. Malaysia shall take those steps during the transition period or implementation period referred to paragraphs 1 and 3 that may be necessary to ensure that it complies with this Chapter at the end of any such period.
Chapter 11. COMPETITION
Article 11.1. General Principles
1. The Parties recognise the importance of undistorted competition and that anticompetitive activities may undermine the benefits of this Agreement.
2. For the purposes of this Chapter, "anticompetitive activities" means:
(a) agreements between enterprises, decisions by associations of enterprises and concerted practices between enterprises which have as their object or effect the prevention, restriction or distortion of competition; and
(b) abuse by one or more undertakings of a dominant position in the territory of a Party as a whole or in a substantial part thereof.
3. Each Party shall take appropriate action against anticompetitive activities by applying its respective domestic competition laws and regulations in conformity with the principles of transparency, non-discrimination and procedural fairness.
4. This Chapter shall not be construed to create any direct obligations for undertakings.
Article 11.2. Scope
1. This Chapter shall apply to the commercial activities of all undertakings in so far as the application of these provisions does not obstruct the performance, in law or in fact, of particular public tasks assigned to them.
2. This Chapter shall not prevent a Party from providing exemptions and exclusions from application of its domestic competition laws and regulations, provided that those exemptions and exclusions are based on public policy grounds or public interest grounds, and made transparent. On request, a Party shall make available to another Party public information concerning such exemption.
Article 11.3. Cooperation
1. The Parties recognise the importance of cooperation to promote effective competition enforcement.
2. The Parties may cooperate and exchange information relating to competition matters, subject to their respective domestic laws and regulations and available resources.
Article 11.4. Consultations
The Parties may request consultations in the Joint Committee on matters related to anticompetitive practices and their adverse effects on trade. The consultations shall be without prejudice to the autonomy of each Party to develop, maintain and enforce its domestic competition laws and regulations.
Article 11.5. Dispute Settlement
No Party shall have recourse to dispute settlement under Chapter 15 (Dispute Settlement) for any matter arising under this Chapter.
Chapter 12. TRADE AND SUSTAINABLE DEVELOPMENT
Article 12.1. Context and Objectives
1. The Parties recall the Declaration of the United Nations Conference on the Human Environment of 1972, the Rio Declaration on Environment and Development of 1992, Agenda 21 on Environment and Development of 1992, the Johannesburg Plan of Implementation on Sustainable Development of 2002, the Rio+20 Outcome Document "The Future We Want" of 2012, the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up of 1998, the ILO Centenary Declaration for the Future of Work of 2019, the Ministerial Declaration of the UN Economic and Social Council on Full and Productive Employment and Decent Work for All of 2006, the ILO Declaration on Social Justice for a Fair Globalization of 2008 and the outcome document of the UN Summit on the Sustainable Development Goals "Transforming our World: The 2030 Agenda for Sustainable Development" of 2015.
2. The Parties recognise that economic development, social development and environmental protection are interdependent and mutually supportive components of sustainable development. The Parties underline the benefit of cooperation on trade related labour and environmental issues as part of a global approach to trade and sustainable development.
3. The Parties reaffirm their commitment to promote the development of international trade in such a way as to contribute to the objective of sustainable development and to ensure that this objective is integrated and reflected in the Parties' trade relationship.