(b) indispensable for national security; or
(c) for national defence purposes.
2. 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, of philanthropic institutions or of prison labour.
Article 158. General Principles
Non-discrimination
1. With respect to any measure regarding covered procurement, a Party, including its procuring entities, shall accord immediately and unconditionally to the goods and services of the other Party and to the suppliers of the other Party offering such goods or services, treatment no less favourable than the treatment the Party, including its procuring entities, accords to its own goods, services and suppliers.
2. With respect to any measure regarding covered procurement, a Party, including its procuring entities, shall not:
(a) treat a locally established supplier less favourably than another locally established supplier on the basis of the 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 the other Party.
National treatment of locally established suppliers
3. Each Party shall ensure that the suppliers of the other Party that have established a commercial presence in its territory through the constitution, acquisition or maintenance of a legal person are accorded, with regard to any government procurement of the Party in its territory, treatment no less favourable than the treatment accorded to its domestic suppliers in accordance with national laws and regulations.
The general exceptions set forth in Article 157 shall apply.
Use of electronic means
4. When conducting covered procurement by electronic means, a procuring entity shall:
(a) ensure that the procurement is conducted using information technology systems and software, including those related to authentication and encryption of information, that are generally available and interoperable with other generally available information technology systems and software;
(b) maintain mechanisms that ensure the integrity of requests for participation and tenders, including with regard to the determination of the time of receipt and the prevention of inappropriate access; and
(c) use electronic means of information and communication for the publication of notices and tender documentation in procurement procedures and, to the widest extent practicable, for the submission of tenders.
Conduct of covered procurement
5. 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.
Rules of origin
6. For the purposes of covered procurement, a Party shall not apply rules of origin to imports or supplies of goods or services from the other Party that are different from the rules of origin the Party applies at the same time in the normal course of trade to imports or supplies of the same goods or services.
Offsets
7. With regard to covered procurement, a Party, including its procuring entities, shall not seek, take account of, impose or enforce any offset.
Measures not specific to procurement
8. Paragraphs 1 and 2 shall not apply to:
(a) customs duties and charges of any kind imposed on, or in connection with, importation;
(b) the method of levying such duties and charges; and
(c) other import regulations or formalities and measures affecting trade in services other than measures governing covered procurement.
Anti-corruption measures
9. Each Party shall ensure that it has appropriate measures in place to address corruption in its government procurement. Those measures may include procedures to render ineligible for participation in the Party's procurements, either indefinitely or for a stated period of time, suppliers that the judicial authorities or competent State authorities of that Party have determined by final decision to have engaged in fraudulent or other illegal actions in relation to government procurement in the territory of that Party. 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 of persons engaged in or having influence over procurement.
Article 159. Information on the Procurement System
1. Each Party shall:
(a) promptly publish any law, regulation, judicial decision, administrative ruling of general application, standard contract clause mandated by law or regulation and incorporated by reference in notices or tender documentation and procedure regarding covered procurement, and any modifications thereto, in an officially designated electronic or paper medium that is widely disseminated and remains readily accessible to the public; and
(b) provide an explanation thereof to the other Party, on request.
2. Each Party shall list in Section 6 of Annex 9:
(a) the electronic or paper media in which the Party publishes the information described in point (a) of paragraph 1 of this Article;
(b) the electronic or paper media in which the Party publishes the notices referred to in Articles 160, 162(7) and 169(2); and
(c) the website address or addresses where the Party publishes its notices concerning awarded contracts pursuant to Article 169(2).
3. A Party shall promptly notify the Cooperation Committee of any modification to the information listed, pursuant to paragraph 2 of this Article in Section 6 of Annex 9.
Article 160. Notices
1. All notices referred to in this Article (notice of intended procurement, summary notice and notice of planned procurement) shall be directly accessible by electronic means free of charge through a single online point of access. In addition, the notices may also be published in an appropriate paper medium which is widely disseminated and shall remain readily accessible to the public, at least until expiration of the time period indicated in the notice.
Notice of intended procurement
2. For each covered procurement, a procuring entity shall publish a notice of intended procurement, except in the circumstances described in Article 166.
3. Except as otherwise provided for in this Chapter, each notice of intended procurement shall include:
(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, if the quantity is not known, the estimated quantity;
(c) for recurring contracts, an estimate, if possible, of the timing of subsequent notices of intended procurement;
(d) a description of any options;
(e) the time frame for delivery of goods or services or the duration of the contract;
(f) the procurement method that will be used and whether it will involve negotiation or electronic auction;
(g) if applicable, the address and any final date for the submission of requests for participation;
(h) the address and the final date for the submission of tenders;
(i) 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;
(j) a list and brief description of any conditions for participation, including any requirements for specific documents or certifications to be provided by suppliers in connection with such participation, 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;
(k) if, pursuant to Article 162, 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, if applicable, any limitation on the number of qualified suppliers that will be permitted to tender; and
(l) an indication that the procurement is a covered procurement.
Summary notice
4. For each case of intended procurement, a procuring entity shall publish a summary notice that is readily accessible, at the same time as the publication of the notice of intended procurement, in one of the languages of the WTO. The summary notice shall contain at least the following information:
(a) the subject matter of the procurement;
(b) the final date for the submission of tenders or, if applicable, any final date for the submission of requests for participation or for inclusion on a multi-use list; and
(c) the address from which documents relating to the procurement may be requested.
Notice of planned procurement
5. Procuring entities are encouraged to publish in the appropriate electronic and, if available, paper medium listed in Section 6 of Annex 9 as early as possible in each fiscal year a notice regarding their future procurement plans (hereinafter referred to as "notice of planned procurement"). The notice of planned procurement shall also be published in the single point of access website listed in Section 6 of Annex 9, subject to paragraph 3 of this Article. 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 Sections B or C may use a notice of planned procurement as a notice of intended procurement provided that the notice of planned procurement includes as much of the information referred to in paragraph 4 as is available to the procuring entity and a statement that interested suppliers should express their interest in the procurement to the procuring entity.
Article 161. Conditions for Participation
1. A procuring entity shall limit any conditions for participation in a procurement to those that are essential to ensure that a supplier has the legal and financial capacities and the commercial and technical abilities to undertake the relevant procurement.
2. In establishing the conditions for participation, a procuring entity:
(a) 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 Party; and
(b) may require relevant prior experience if essential to meet the requirements of the procurement (21).
3. In assessing whether a supplier satisfies the conditions for participation, a procuring entity shall:
(a) 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; and
(b) base its evaluation on the conditions that it has specified in advance in notices or tender documentation.
4. If there is supporting evidence, a Party, including its procuring entities, may exclude a supplier from participation in a procurement on grounds such as:
(a) bankruptcy;
(b) false declarations;
(c) significant or persistent deficiencies in performance of any substantive requirement or obligation under any prior contract;
(d) final judgments in respect of serious crimes or other serious offences;
(e) professional misconduct or acts or omissions that adversely reflect on the commercial integrity of the supplier; or
(f) failure to pay taxes.
Article 162. 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. In this case, the Party shall ensure that interested suppliers have access to information on the registration system to the extent possible, through electronic means, and that they may request registration at any time. The procuring entity shall inform them within a reasonable period of time of the decision to grant or reject this request. If the request is rejected, the decision shall be duly motivated.
2. Each Party shall ensure that:
(a) its procuring entities make efforts to minimise differences in their qualification procedures; and
(b) if its procuring entities maintain registration systems, the procuring entities make efforts to minimise differences in their registration systems.
3. A Party, including its procuring entities, shall not adopt or apply a registration system or qualification procedure with the purpose or the effect of creating unnecessary obstacles to the participation of suppliers of the other Party in its procurement.
Selective tendering
4. If a procuring entity intends to use selective tendering, it shall:
(a) include in the notice of intended procurement at least the information specified in points (a), (b), (f), (g), (j), (k) and (l) of Article 160(3) 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 specified in points (c), (d), (e), (h) and (i) of Article 160(3) to the qualified suppliers that it notifies as specified in point (b) of Article 164(3).
5. 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 qualified suppliers permitted to tender and the criteria for selecting the limited number of suppliers. An invitation to submit a tender shall be addressed to a number of qualified suppliers necessary to ensure effective competition.
6. If the tender documentation is not made publicly available from the date of publication of the notice referred to in point (a) of paragraph 4, a procuring entity shall ensure that the documentation is made available at the same time to all the qualified suppliers selected in accordance with paragraph 5.
Multi-use lists
7. A procuring entity may maintain a multi-use list, provided that a notice inviting interested suppliers to apply for inclusion on the list is:
(a) published annually in the appropriate medium listed in Section 6 of Annex 9; and
(b) if published by electronic means, made available continuously in the appropriate medium listed in Section 6 of Annex 9.
8. The notice provided for in paragraph 7 shall include:
(a) a description of the goods or services, or categories thereof, for which the list may be used;
(b) the 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) 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 list;
(d) the period of validity of the list and the means for its renewal or termination, or if 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; and
(e) an indication that the list may be used for the covered procurement.
9. Notwithstanding paragraph 7, if a multi-use list will be valid for three years or less, a procuring entity may publish the notice referred to in paragraph 7 only once, at the beginning of the period of validity of the list, provided that the notice:
(a) states the period of validity of the list and states that further notices will not be published; and
(b) is published by electronic means and is made available continuously during the period of its validity in the appropriate medium listed in Section 6 of Annex 9.
10. A procuring entity shall allow suppliers to apply at any time for inclusion on a multi-use list and shall include on the list all qualified suppliers within a reasonably short time.
11. If a supplier that is not included on a multi-use list submits a request for participation in a procurement based on a multi-use list and all required documents, within the time period provided for in Article 164(2), a procuring entity shall examine the request. The procuring entity shall not exclude the supplier from consideration in respect of the procurement on the grounds that the procuring entity does not have sufficient time to examine the request, unless, in exceptional cases, due to the complexity of the procurement, the procuring entity is not able to complete the examination of the request within the time period allowed for the submission of tenders.
Procuring entities covered by Sections 2 and 3 of Annex 9
12. A procuring entity covered under Sections 2 and 3 of Annex 9 may use a notice inviting interested suppliers to apply for inclusion on a multi-use list as a notice of intended procurement, provided that:
(a) the notice is published in accordance with paragraph 7 of this Article and includes the information required under paragraph 8 of this Article, as much of the information required under Article 160(2) as is available and a statement that it constitutes a notice of intended procurement or that only the suppliers on the multi-use list will receive further notices of procurement covered by the multi-use list; and
(b) the procuring entity promptly provides to suppliers that have expressed an interest in a given procurement, sufficient information to permit them to assess their interest in the procurement, including all remaining information required under Article 160(2), to the extent such information is available.
13. A procuring entity covered under Section 2 or 3 of Annex 9 may allow a supplier that has applied for inclusion on a multi-use list to tender in a given procurement, if there is sufficient time for the procuring entity to examine whether the supplier satisfies the conditions for participation.
14. A procuring entity 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 procuring entity's decision with respect to the request or application.
15. If a procuring entity rejects a supplier's request for participation in a procurement or application for inclusion on a multi-use list, ceases to recognise a supplier as a qualified supplier, or removes a supplier from a multi-use list, the procuring entity shall promptly inform the supplier and, on request of the supplier, promptly provide the supplier with a written explanation of the reasons for its decision.
Article 163. Technical Specifications and Tender Documentation
Technical specifications
1. A Party including its procuring entities shall not prepare, adopt or apply any technical specification or set out any conformity assessment procedure with the purpose or the effect of creating unnecessary obstacles to trade between the Parties.
2. In setting out the technical specifications for the goods or services being procured, a procuring entity shall, if 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, if such standards exist, otherwise, on national technical regulations, recognised national standards or building codes.
3. If design or descriptive characteristics are set out in the technical specifications, a procuring entity should indicate, if 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 set out technical specifications that require or refer to a particular trademark or trade name, patent, copyright, design, type, specific origin, producer or supplier, unless there is no other sufficiently precise or intelligible way of describing the procurement requirements and provided that the procuring 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. A Party, including its procuring entities, may prepare, adopt or apply technical specifications to promote the conservation of natural resources or protect the environment, provided that it does so in accordance with this Article.
A Party may:
(a) allow procuring entities to take into account environmental and social considerations throughout the procurement procedure, provided they are non-discriminatory and they are linked to the subject matter of the concerned contract; and
(b) take appropriate measures to ensure compliance with its obligations in the fields of environmental, social and labour law, including the obligations under Chapter 10.
Tender documentation
7. 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 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, if 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, including a list of information and documents that suppliers are required to submit in connection with such participation;
(c) all evaluation criteria the procuring entity will apply in the awarding of the contract and, unless price is the sole criterion, the relative importance of those criteria;
(d) if the procuring entity will conduct the procurement by electronic means, any authentication and encryption requirements or other requirements related to the submission of information and documents by electronic means;
(e) if the procuring entity will hold an electronic auction, the rules, including identification of the elements of the tender related to the evaluation criteria, according to which the auction will be conducted;
(f) if there will be a public opening of tenders, the date, time and place for the opening and, if 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 set in accordance with paragraph 8.
8. In setting any date for the delivery of goods or the supply of services being procured, a procuring entity shall take into account such factors as the complexity of the procurement, the extent of subcontracting anticipated and the realistic time required for production, destocking and transport of goods from the point of supply or for supply of services.
9. The evaluation criteria set out in the tender documentation may include, among others, price and other cost factors, quality, technical merit, environmental characteristics and terms of delivery.
10. A procuring entity shall promptly:
(a) make available tender documentation to ensure that interested suppliers have sufficient time to submit responsive tenders;
(b) provide, on request, the tender documentation to any interested supplier; and