(c) 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.
Modifications
11. If, prior to the award of a contract, a procuring entity modifies the criteria or requirements set out in the notice of intended procurement or tender documentation made available to participating suppliers, or amends or reissues the notice or tender documentation, it shall transmit in writing all such modifications or the 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 those suppliers are known to the procuring entity, and in all other cases, in the same manner as the original information was made available; and
(b) in adequate time to allow those suppliers to modify and re-submit amended tenders, as appropriate.
Article 164. Time Periods
1. A procuring entity shall, in accordance with its own reasonable needs, provide sufficient time periods for suppliers to prepare and submit requests for participation and responsive tenders, taking into account such factors as:
(a) the nature and complexity of the procurement;
(b) the extent of subcontracting anticipated; and
(c) the time necessary for transmitting tenders by non-electronic means from foreign as well as domestic points if electronic means are not used.
These time periods, including any extension thereof, shall be the same for all interested or participating suppliers.
2. A procuring entity that uses selective tendering shall establish that the final date for the submission of requests for participation is, in principle, to be at least 25 days after the date of publication of the notice of intended procurement. If a state of urgency duly substantiated by the procuring entity renders this time period impracticable, the time period may be reduced to not less than 10 days.
3. Except as provided for in paragraphs 4, 5, 7 and 8, a procuring entity shall establish that the final date for the submission of tenders is to be at least 40 days after the date on which:
(a) in the case of open tendering, the notice of intended procurement is published; or
(b) in the case of selective tendering, the procuring entity notifies suppliers that they will be invited to submit tenders, whether or not it uses a multi-use list.
4. A procuring entity may reduce the time period for tendering established in accordance with paragraph 3 to not less than 10 days if:
(a) the procuring entity has published a notice of planned procurement as referred to in Article 160(4) at least 40 days and not more than 12 months in advance of the publication of the notice of intended procurement, and the notice of planned procurement contains:
(i) a description of the procurement;
(ii) the approximate final dates for the submission of tenders or requests for participation;
(iii) a statement that interested suppliers should express their interest in the procurement to the procuring entity;
(iv) the address from which documents relating to the procurement may be obtained; and
(v) as much of the information that is required for the notice of intended procurement under Article 160(2), as is available;
(b) the procuring entity, for contracts of a recurring nature, indicates in an initial notice of intended procurement that subsequent notices will provide time periods for tendering based on this paragraph; or
(c) a state of urgency duly substantiated by the procuring entity renders the time period for tendering established in accordance with paragraph 3 impracticable.
5. A procuring entity may reduce the time period for tendering established in accordance with paragraph 3 by five days for each one of the following circumstances:
(a) the notice of intended procurement is published by electronic means;
(b) the tender documentation is made available by electronic means from the date of publication of the notice of intended procurement; and
(c) the procuring entity accepts tenders by electronic means.
6. The use of paragraph 5, in conjunction with paragraph 4, shall in no case result in the reduction of the time period for tendering established in accordance with paragraph 3 to less than 10 days from the date on which the notice of intended procurement is published.
7. Notwithstanding any other provision in this Article, a procuring entity purchasing commercial goods or services, or any combination thereof, may reduce the time period for tendering established in accordance with paragraph 3 to not less than 13 days, provided that it publishes by electronic means, at the same time, both the notice of intended procurement and the tender documentation. In addition, if the procuring entity accepts tenders for commercial goods or services by electronic means, it may reduce the time period established in accordance with paragraph 3 to not less than 10 days.
8. A procuring entity covered under Section 2 or 3 of Annex 9 that has selected all or a limited number of qualified suppliers may determine the time period for tendering by mutual agreement between the procuring entity and the selected suppliers. In the absence of agreement, the time period shall not be less than 10 days.
Article 165. Negotiation
1. A Party may provide for its procuring entities to conduct negotiations with suppliers if:
(a) the procuring entity has indicated its intent to conduct negotiations in the notice of intended procurement as referred to in point (f) of Article 160(3); or
(b) it appears from the evaluation that no tender is obviously the most advantageous in terms of the specific evaluation criteria set out in the notice of intended procurement or tender documentation.
2. A procuring entity shall:
(a) ensure that any elimination of suppliers participating in negotiations is carried out in accordance with the evaluation criteria set out in the notice of intended procurement or tender documentation; and
(b) if negotiations are concluded, provide a common deadline for the remaining participating suppliers to submit any new or revised tenders.
Article 166. Limited Tendering
1. Provided that it does not use this provision for the purpose of avoiding competition among suppliers or in a manner that discriminates against suppliers of the other Party or protects domestic suppliers, a procuring entity may use limited tendering and may choose not to apply Articles 160, 161 and 162, Article 163(7) to (11), and Articles 164 to 167 under any of the following circumstances:
(a) provided that the requirements of the tender documentation are not substantially modified, if:
(i) no tenders were submitted or no suppliers 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;
(b) if 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 requirements are for a work of art;
(ii) the protection of patents, copyrights or other exclusive rights; or
(iii) an absence of competition for technical reasons;
(c) for additional deliveries by the original supplier of goods or services that were not included in the initial procurement if a change of supplier for such additional goods or 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 for the procuring entity;
(d) if, and only insofar as is strictly necessary, 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 open tendering or selective tendering;
(e) for goods purchased on a commodity market;
(f) if a procuring entity procures a prototype or a first good or service 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;
(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) if a contract is awarded to a winner of a design contest provided that:
(i) the contest has been organised in a manner that is consistent with 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 referred to in paragraph 1 that justified the use of limited tendering.
Article 167. Electronic Auctions
A procuring entity that intends to conduct a covered procurement using an electronic auction, shall provide each participant, before commencing the electronic auction, with:
(a) the automatic evaluation method, including the mathematical formula, that is based on the evaluation criteria set out in the tender documentation and that will be used in the automatic ranking or re-ranking during the auction;
(b) the results of any initial evaluation of the elements of its tender if the contract is to be awarded on the basis of the most advantageous tender; and
(c) any other relevant information relating to the conduct of the electronic auction.
Article 168. Treatment of Tenders and Awarding of Contracts
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 period specified for receiving tenders if the delay is due solely to mishandling on the part of the procuring entity.
3. A procuring entity that provides a supplier with an opportunity to correct unintentional errors of form between the opening of tenders and the awarding of the contract, shall provide the same opportunity to all participating suppliers.
Awarding of contracts
4. To be considered for an award, a tender shall be submitted in writing and shall, at the time of opening, comply with the essential requirements set out in the notices and tender documentation and be from a qualified supplier.
5. Unless a procuring entity determines that it is not in the public interest to award a contract, it shall award the contract to the qualified 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) if price is the sole criterion, the lowest price.
6. If a procuring entity receives a tender with a price that is abnormally lower than the prices in other tenders submitted, it may verify with the supplier that it satisfies the conditions for participation and is capable of fulfilling the terms of the contract. The procuring entity may also verify whether the supplier has obtained subsidies. In that case, the tender may be rejected on that ground alone unless the supplier is able to prove, within a sufficient time period fixed by the procuring entity, that the subsidy was granted in compliance with the disciplines relating to subsidies laid down in Section B of Chapter 11.
7. A procuring entity shall not use options, cancel a procurement or modify awarded contracts in a manner that circumvents the obligations under this Chapter.
8. Each Party shall provide, as a general rule, for a standstill period between the award and the conclusion of a contract in order to give sufficient time to unsuccessful bidders to review and challenge the award decision.
Article 169. Transparency of Procurement Information
Information provided to suppliers
1. A procuring entity shall promptly inform participating suppliers of its contract award decisions and, on the request of a supplier, shall do so in writing. Subject to Article 170(2) and (3), 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.
Publication of award information
2. A procuring entity shall publish a notice in the appropriate electronic or paper medium listed in Section 6 of Annex 9 no later than 72 days after the award of each contract covered by this Chapter. If 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 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 in accordance with Article 166, a description of the circumstances and conditions referred to in paragraph 1 of that Article that justified the use of limited tendering.
Maintenance of documentation, reports and electronic traceability
3. Each procuring entity shall, for a period of at least three years from the date it awards a contract, maintain:
(a) the documentation and reports of tendering procedures and contract awards relating to covered procurement, including the reports required under Article 166; and
(b) data that ensure the appropriate traceability of the conduct of covered procurement by electronic means.
Article 170. Disclosure of Information
1. On request of the other Party, a Party shall provide promptly any information necessary to determine whether a covered procurement was conducted fairly, impartially and in accordance with this Chapter, including information on the characteristics and relative advantages of the successful tender. If releasing the information might prejudice competition in future tenders, the Party that receives the information shall not disclose it to any supplier, except after obtaining the consent of the Party that provided the information.
2. Notwithstanding any other provision of this Chapter, a Party, including its procuring entities, shall not provide to any particular supplier information that might prejudice fair competition between suppliers.
3. Nothing in this Chapter shall be construed as requiring a Party, including its procuring entities, authorities and review bodies, to disclose confidential information if such 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 171. Domestic Review Procedures
1. Each Party shall provide for a timely, effective, transparent and non-discriminatory administrative or judicial review procedure through which a supplier may challenge, in the context of a covered procurement in which the supplier has, or has had, an interest:
(a) a breach of this Chapter; or
(b) if the supplier does not have a right to challenge directly a breach of this Chapter under the law of a Party, a failure to comply with a Party's measures implementing this Chapter.
The procedural rules for all challenges shall be in writing and made publicly available.
2. In the case of a complaint by a supplier, arising in the context of a 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 conducting the covered procurement shall encourage the procuring entity and the supplier to seek resolution of the complaint through consultations. The procuring entity shall accord impartial and timely consideration to any such complaint in a manner that is not prejudicial to the supplier's participation in ongoing or future covered 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. That period of time shall in no case be less than 10 days from the time when the basis of the challenge became known or reasonably should have become known to the supplier.
4. Each 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. If a body other than an authority referred to in paragraph 4 initially reviews a challenge, the relevant 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 covered procurement is the subject of the challenge.
6. Each Party shall ensure that a review body referred to in paragraph 5 that is not a court has its decision subject to judicial review or has procedures that provide that:
(a) the procuring entity is to respond in writing to the challenge and disclose all relevant documents to the review body;
(b) the participants in the proceedings (hereinafter referred to as "participants") have the right to be heard prior to a decision of the review body being made on the challenge;
(c) the participants have the right to be represented and accompanied;
(d) the participants are to have access to all proceedings;
(e) the participants have the right to request that the proceedings take place in public and that witnesses may be presented; and
(f) the review body is to make [its decisions or recommendations in a timely fashion, in writing, and include] an explanation of the basis for each decision or recommendation.
7. Each Party shall adopt or maintain procedures that provide for rapid interim measures to preserve the supplier's opportunity to participate in the covered 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.
Each Party shall also adopt or maintain procedures that provide for corrective action or compensation for the loss or damages suffered, in cases where a review body has determined that there has been a breach or a failure as referred to in paragraph 1. The compensation for the loss or damages suffered may be limited to either the costs for the preparation of the tender or the costs relating to the challenge, or both.
Article 172. Modifications and Rectifications to Coverage
1. A Party may propose to modify its covered procurement set out in Annex 9 or to rectify its relevant Sub-Section in Sections 1, 2 or 3 of Annex 9.
Modifications
2. A Party that intends to propose a modification to Annex 9 shall:
(a) notify the other Party in writing; and
(b) include in the notification a proposal for appropriate compensatory adjustments to the other Party to maintain a level of coverage comparable to that existing prior to the modification.
3. Notwithstanding point (b) of paragraph 2, a Party does not need to provide compensatory adjustments if the modification covers a procuring entity over which the Party has eliminated its control or influence, or if the procuring entity henceforward will be operating as a commercial enterprise subject to competition in a market to which access is not restricted.
A Party is considered to exert control or influence over a procuring entity if that entity:
(a) is financed, for the most part, by the State, or a body controlled by the State;
(b) is subject to management supervision by the State, or a body controlled by the State; or
(c) has an administrative, managerial or supervisory board, more than half of whose members are appointed by the State or a body controlled by the State.
4. The other Party must object in writing to a proposed modification to Annex 9 notified pursuant to paragraph 2 of this Article, if it disputes that:
(a) an adjustment proposed pursuant to point (b) of paragraph 2 is adequate to maintain a comparable level of mutually agreed coverage;
(b) the modification covers a procuring entity over which the Party has eliminated its control or influence pursuant to paragraph 3; or
(c) the procuring entity concerned is operating as a commercial enterprise subject to competition in a market to which access is not restricted.
If no objection is submitted in writing within 45 days after the date of receipt of the notification referred to in point (a) of paragraph 2, the other Party shall be deemed to have agreed to the adjustment or modification.
Rectifications
5. The following changes to a Party's Sub-Section in Sections 1, 2 or 3 of Annex 9 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 two or more procuring entities; and
(c) the separation of a procuring entity into two or more entities that are all added to the procuring entities covered by the same Section of Annex 9.
The 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 Party's Sub-Section in Sections 1, 2 or 3 of Annex 9, the Party shall notify the other Party every two years following the entry into force of this Chapter.
7. A Party may notify the other Party of an objection to a proposed rectification in writing within 45 days from having received the notification. A Party submitting an objection shall explain why it considers the proposed rectification to be outside the scope of paragraph 5, and describe the effect of the proposed rectification on the mutually agreed coverage provided for in this Chapter. If no objection is submitted in writing within 45 days after the date of receipt of the notification, the other Party shall be deemed to have agreed to the proposed rectification.
Consultations and dispute settlement
8. If the other Party objects to the proposed modification or rectification, the Parties shall seek to resolve the issue through consultations. If no agreement is found within 60 days after the date of receipt of the objection, the Party seeking to modify or rectify its Sub-Section in Sections 1, 2 or 3 of Annex 9 may refer the matter to the dispute settlement procedure under Chapter 14 to determine whether the objection is justified.
Amendments of Annex 9
9. Once the Parties agree on any proposed modification or rectification, including where a Party has not objected within 45 days in accordance with paragraph 4 or 7 or where the issue has been resolved through the dispute settlement procedure referred to in paragraph 8, the Cooperation Council acting in its trade configuration shall modify Annex 9 accordingly.
Article 173. Institutional Provisions
On a Party's request, the Cooperation Committee shall meet to address matters related to the implementation and operation of this Chapter as well as of Annex 9, such as:
(a) the necessity of a modification to Annex 9;