1. A procuring entity shall receive, open and treat all tenders in accordance with procedures that guarantee the fairness and impartiality of the procurement process, and the confidentiality of tenders.
2. Where a procuring entity provides a supplier with an opportunity to correct 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, provided that the correction of the error does not substantially alter the submitted tender, nor affect the principles of transparency and fair competition between suppliers.
3. 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 from a supplier that satisfies the conditions for participation.
4. Unless a procuring entity determines that it is not in the public interest to award a contract, the procuring entity 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 notices and tender documentation, has submitted:
(a) the most advantageous tender; or
(b) where price is the sole criterion, the lowest price.
5. Where a procuring entity receives a tender with a price that is abnormally lower than the prices in other tenders submitted or the estimated procurement value, the procuring entity may verify with the supplier that it satisfies the conditions for participation and is capable of fulfilling the terms of the contract.
6. A procuring entity shall not use options, cancel a procurement or modify awarded contracts in a manner that circumvents the obligations under this Chapter.
7. A State Party may provide that if, for reasons imputable to the successful supplier, the contract is not concluded within a reasonable time, or the successful supplier does not fulfil the required guarantee for the execution of the contract, or does not comply with the contract terms, the contract may be awarded to the next tenderer and so forth.
ARTICLE 13.22
Transparency of procurement information
1. A procuring entity shall promptly inform participating suppliers of the procuring entity's contract award decisions and, on request of a supplier, shall do so in writing. Subject to Article 13.23(2) and (3) (Disclosure of Information), a procuring entity shall, on request, provide an unsuccessful supplier with an explanation of the reasons why the procuring entity did not select its tender and the relative advantages of the successful supplier's tender.
2. No later than 72 (seventy-two) days after the award of each contract covered by this Chapter, a procuring entity shall promptly publish a notice in the appropriate paper or electronic medium listed in Section H (Means of Publication of the State Party’s Appendix in Annex 13-A (Schedule of Commitments on Government Procurement)). Where the procuring entity publishes the notice only in an electronic medium, 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 goods or services procured;
(b) the name and address of the procuring entity;
(c) the name 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 procedure used, and in cases where limited tendering was used in accordance with Article 13.19 (Limited Tendering), a description of the circumstances justifying the use of limited tendering.
3. Each procuring entity shall, for a period of at least 3 (three) years from the date it awards a contract, maintain:
(a) the documentation and reports or records of tendering procedures and contract awards relating to covered procurement, including the reports or records required under Article 13.19 (Limited Tendering); and
(b) data that demonstrate how covered procurement by electronic means has been conducted from the publication of the notice to the award of the contract.
4. Each State Party shall communicate to the other State Parties the available and comparable statistics relevant to the procurement covered by this Chapter.
ARTICLE 13.23
Disclosure of information
1. On request of a State Party, another State 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 State Party that receives the information shall not disclose it to any supplier, except after consulting with, and obtaining the agreement of, the State Party that provided the information.
2. Notwithstanding any other provision of this Chapter, a State Party, including its procuring entities, shall not provide to any supplier information that might prejudice fair competition between suppliers.
3. Nothing in this Chapter shall be construed to require a State Party, including its procuring entities, authorities and review bodies, to disclose confidential information 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 13.24
Domestic review procedures
1. Each State Party shall provide a timely, effective, transparent and non-discriminatory administrative or judicial review procedure through which a supplier may challenge:
(a) breaches of this Chapter; or
(b) a failure to comply with a State Party's measures implementing this Chapter, where the supplier does not have a right to challenge directly a breach of this Chapter under the laws and regulations of a State Party
arising in the context of a covered procurement, in which the supplier has, or has had, an interest. The procedural rules for all challenges 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 State Party of the procuring entity may encourage that procuring entity and the supplier to seek resolution of the complaint through consultations. The procuring entity shall accord impartial and timely consideration to any such 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.
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 (ten) days from the time when the basis of the challenge became known or reasonably should have become known to the supplier.
4. Each State Party shall establish or designate at least one impartial administrative or judicial authority that is independent of its procuring entities to receive and review a challenge by a supplier arising in the context of a covered procurement.
5. Where a body other than an authority referred to in paragraph 4 initially reviews a challenge, the State Party shall ensure that the supplier may appeal the initial decision to an impartial administrative or judicial authority that is independent of the procuring entity whose procurement is the subject of the challenge.
6. Each State 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) the procuring entity shall respond in writing to the challenge and disclose all relevant documents to the review body;
(b) the participants to the proceedings (hereinafter referred to as "participants") shall have the right to be heard prior to a decision of the review body being made on the challenge;
(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 body 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.
7. Each State Party shall adopt or maintain procedures that provide for:
(a) Rapid interim measures to preserve the supplier's opportunity to participate in the procurement. Such interim measures may result in 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) Corrective action or compensation for the loss or damages suffered, which may be limited to either the costs for the preparation of the tender or the costs relating to the challenge, or both, if a review body determines that there has been a breach or a failure as referred to in paragraph 1.
ARTICLE 13.25
Modifications and rectifications to coverage
1. A State Party may propose to modify or rectify its Appendix in Annex 13-A (Schedule of Commitments on Government Procurement).
2. When a State Party intends to modify an Appendix in Annex 13-A (Schedule of Commitments on Government Procurement), the State Party shall:
(a) notify the other State Parties in writing; and
(b) include in the notification a proposal for appropriate compensatory adjustments to the other State Parties to maintain a level of coverage comparable to that existing prior to the modification.
3. Notwithstanding subparagraph (b) of paragraph 2, a State Party does not need to provide compensatory adjustments if the proposed modification covers a procuring entity over which the State Party has effectively eliminated its control or influence over that procuring entity's covered procurement.
4. If another State Party disputes that:
(a) an adjustment proposed under subparagraph (b) of paragraph 2 is adequate to maintain a comparable level of mutually agreed coverage; or
(b) the modification covers an entity over which the State Party has effectively eliminated its control or influence under paragraph 3,
it shall object in writing within 45 (forty-five) days of receipt of the notification referred to in sub-paragraph (a) of paragraph 2. If no such objection is submitted within 45 (forty-five) days after having received the notification, the proposed modification shall become effective.
5. The following changes to a State Party's Appendix in Annex 13-A (Schedule of Commitments on Government Procurement) shall be considered a rectification of a purely formal nature, provided that they do not affect the mutually agreed coverage provided for in this Chapter:
(a) a change in the name of a procuring entity;
(b) a merger of 2 (two) or more procuring entities listed within its Appendix in Annex 13-A (Schedule of Commitments on Government Procurement); and
(c) the separation of a procuring entity listed in its Appendix in Annex 13-A (Schedule of Commitments on Government Procurement) into 2 (two) or more procuring entities that are all added to the entities listed in the same Appendix in Annex 13-A (Schedule of Commitments on Government Procurement).
The State Party making such rectification of a purely formal nature shall not be obliged to provide for compensatory adjustments.
6. In the case of proposed rectifications to a State Party's Appendix in Annex 13-A (Schedule of Commitments on Government Procurement), the State Party shall notify the other State Parties every 2 (two) years following the entry into force of this agreement.
7. A State Party may notify the other State Parties of an objection to a proposed rectification within 45 (forty-five) days from having received the notification. Where a State Party submits an objection, it shall set out the reasons why it believes the proposed rectification is not a change provided for in paragraph 5, and describe the effect of the proposed rectification on the mutually agreed coverage provided for in the Agreement. If no such objection is submitted in writing within 45 (forty-five) days after having received the notification, the proposed rectification shall become effective.
8. If another State Party objects to the proposed modification or rectification, or to the proposed compensatory adjustments, the State Parties shall seek to resolve the issue through consultations, including any request of additional information. If no agreement is found within 60 (sixty) days after the receipt of the objection, the State Parties may refer the matter to the dispute settlement procedures under Chapter 18 (Dispute Settlement) unless the State Parties agree to extend the deadline. Once the State Parties agree through consultations or on the basis of a final arbitral award of an arbitration panel under Article 18.13 (Interim Report and Final Arbitral Award) of
18 (Dispute Settlement), the Joint Committee shall modify forthwith the relevant Appendix in Annex 13-A (Schedule of Commitments on Government Procurement) to reflect the agreed modifications or rectifications or the agreed compensatory adjustments.
9. The consultation procedure pursuant to paragraph 8 is without prejudice to the consultation pursuant to Article 18.6 (Consultations) of Chapter 18 (Dispute Settlement).
ARTICLE 13.26
Facilitation of participation of Micro, Small and Medium Enterprises
1. The State Parties recognise the important contribution that MSMEs can make to economic growth and employment, and the importance of facilitating their participation in government procurement.
2. If available, a State Party shall, upon request of another State Party, grant information regarding its measures aimed at promoting, encouraging and facilitating the participation of MSMEs in government procurement.
3. To facilitate participation by MSMEs in government procurement, each State Party shall, to the extent possible and if appropriate:
(a) share information relevant to MSMEs;
(b) endeavour to make all tender documentation available free of charge; and
(c) undertake activities aimed at facilitating the participation of MSMEs in government procurement.
ARTICLE 13.27
Government procurement subcommittee
The State Parties hereby establish a Subcommittee on Government Procurement (hereinafter referred to as ''Subcommittee''), composed of government representatives of each State Party. On request of a State Party, the Subcommittee shall meet to address matters related to the operation of this Chapter, such as:
(a) exchange of information on topics of mutual interest, including exchanges on procurement statistical data;
(b) cooperation between the State Parties, as provided for in Article 13.28 (Cooperation in Government Procurement);
(c) facilitation of participation by MSMEs in covered procurement, as provided for in Article 13.26 (Facilitation of participation of Micro, Small and Medium Enterprises); and
(d) discussion of any other matters related to the operation of this Chapter.
ARTICLE 13.28
Cooperation in government procurement
1. The State Parties recognise the importance of cooperation with a view to achieving a better understanding of their respective government procurement systems as well as better access to their respective markets, in particular for MSMEs.
2. The State Parties shall endeavour to cooperate to ensure an effective implementation of this Chapter.
3. The State Parties shall endeavour to cooperate in matters such as, inter alia:
(a) facilitating participation by suppliers in government procurement, in particular, with respect to MSMEs;
(b) exchanging experiences and information, such as regulatory frameworks, best practices and statistics including sustainable procurement;
(c) developing and expanding the use of electronic means in government procurement systems;
(d) providing capacity building and technical assistance to suppliers with a view to facilitate access to the government procurement markets of each State Party; and
(e) institutional strengthening for the fulfilment of this Chapter including inter alia, capacity building activities, transfer of knowledge, and training of government officials.
Chapter 14. COMPETITION POLICY
ARTICLE 14.1
Definitions
For the purposes of this Chapter:
(a) "Competition Advocacy" means non-enforcement actions by the competition authorities to promote competition; where applicable, such non-enforcement actions may be defined under the competition laws of a State Party;
(b) "Competition Authority" means any authority responsible for the enforcement of each State Party's respective competition laws;
(c) "Competition Laws" means laws and regulations of a State Party governing anticompetitive business conduct;
(d) "Enforcement Proceedings" means judicial or administrative proceedings following an investigation into an alleged violation of the Competition Laws.
ARTICLE 14.2
Objectives
1. The State Parties recognise that anticompetitive business conduct has the potential to distort the proper functioning of markets and undermine the benefits of trade liberalisation. The State Parties seek to take appropriate measures to proscribe such conduct, implement policies to promote competition and cooperate on matters covered by this Chapter to help secure the benefits of this Agreement.
2. The State Parties agree that the following anticompetitive business conduct, which is subject to the imposition of sanctions or other penalties in accordance with their respective Competition Laws, is incompatible with this Agreement, in so far as such conduct may affect trade between the State Parties:
(a) agreements between enterprises, decisions by associations of enterprises and concerted practices, which have as their object or effect the prevention, restriction or distortion of competition;
(b) any abuse by one or more enterprises of a dominant position or a substantial market power; and
(c) concentrations between enterprises, which significantly impede effective competition, as specified in the respective Competition Laws of the State Parties.
ARTICLE 14.3
Competition Laws and Competition Authorities
1. Each State Party shall adopt or maintain Competition Laws that proscribe anticompetitive business conduct, with the objective of encouraging competition in order to promote economic efficiency, and shall take appropriate action with respect to such conduct.
2. Each State Party shall apply its Competition Laws to all commercial activities within its territory. This paragraph does not prevent a State Party from applying its Competition Laws to commercial activities outside its territory that have anticompetitive effects within its jurisdiction.
3. Each State Party may provide for certain exclusions or exemptions from the application of its Competition Laws provided that those exclusions or exemptions are transparent, are in accordance with its Competition Laws, and are based on public policy grounds or public interest grounds.
4. Each State Party shall maintain a Competition Authority that enforces its Competition Laws in accordance with the objectives of this Chapter, and shall ensure that its Competition Authority does not discriminate on the basis of nationality.
5. Each State Party shall ensure independence in decision-making by its Competition Authority in relation to the enforcement of its Competition Laws.
ARTICLE 14.4
Due Process in Enforcement of Competition Laws
1. The State Parties recognise the importance of enforcing their respective Competition Laws in a transparent, timely, and non-discriminatory manner, respecting the principles of procedural fairness and rights of defence of the persons under investigation for possible violation of Competition Laws.
2. Each State Party shall ensure that its Competition Authority affords a person under investigation for possible violation of the Competition Laws of that State Party reasonable opportunity to be heard by that Competition Authority with respect to significant legal, factual or procedural issues that arise during the investigation.
3. Each State Party shall ensure that before it imposes a sanction or remedy against a person for violating its Competition Laws, it affords that person:
(a) information about its Competition Authority's competition concerns, including the identification of the specific Competition Laws alleged to have been violated and the associated maximum potential penalties, if not publicly available;
(b) a reasonable opportunity to have access to information within the Competition Authority's possession that is necessary to prepare an adequate defence to the Competition Authority's allegations, in a manner that is consistent with each State Party's laws and regulations;
(c) a reasonable opportunity to be represented by legal counsel; and
(d) a reasonable opportunity to be heard and present evidence or testimony in that person's defence.
4. Each State Party shall provide a person that is subject to the imposition of a sanction or remedy for violation of its Competition Laws with the opportunity to seek review of the sanction or remedy, including review of alleged substantive or procedural errors, in a court or other independent tribunal established under that State Party's laws and regulations.
5. Each State Party may authorise its Competition Authority to resolve alleged violations voluntarily by consent of the Competition Authority and the person subject to the investigation. A State Party may provide for this voluntary resolution to be subject to approval in accordance with each State Party's laws and regulations.
6. Each State Party shall provide for the protection of confidential information obtained by its Competition Authority during the investigative process. If a State Party's Competition Authority uses or intends to use that information in an enforcement proceeding, the State Party shall, if it is permissible under its law and as appropriate, allow the person under investigation or the person's legal counsel timely access to information that is necessary to prepare an adequate defence to the Competition Authority's allegations.
ARTICLE 14.5
Transparency
1. The State Parties recognise the value of making their competition enforcement policies as transparent as possible.
2. Each State Party shall ensure that its Competition Laws are publicly available.
3. On request of another State Party, a State Party shall make available to the requesting State Party public information concerning:
(a) its competition law enforcement policies and practices [1]; and
(b) exclusions or exemptions under its Competition Laws, provided that the request specifies the particular good or service and market of concern and includes information explaining how the exclusions or exemptions may hinder trade or investment between the State Parties.
4. Each State Party shall ensure that a final decision by its Competition Authority finding a violation of its Competition Laws is made available in writing and sets out findings of fact and the reasoning, including legal and, if applicable, economic analysis, on which the decision is based.
5. Each State Party shall further ensure that a final decision referred to in paragraph 4 and any order implementing that decision are published, or , if publication is not practicable, are otherwise made available to the public in a manner that enables interested persons and other Parties to become acquainted with them.
6. Each State Party shall ensure that the version of the decision or order that is published or otherwise made available to the public is redacted to the extent necessary to be consistent with that State Party's laws and regulations regarding confidentiality and privilege and the need to safeguard information on the grounds of public policy or public interest. A State Party's Competition Authority will oppose, to the fullest extent possible, the disclosure of confidential information protected under that State Party's Competition Laws.
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[1]For greater certainty, disclosure of competition enforcement policies and practices would not necessarily involve the provision of internal operating procedures and documents.
ARTICLE 14.6
Cooperation
1. The State Parties recognise that anticompetitive business conduct transcends national borders and that cooperation and coordination between the State Parties to foster effective competition law enforcement is important and in the public interest.
2. The State Parties shall cooperate pursuant to this Article in a manner compatible with their respective laws, regulations and mutual interests, and within their reasonably available resources.
3. Each State Party shall cooperate, as appropriate:
(a) in the areas of competition policy by exchanging information on the development of those policies;