(b) if the good or service can be supplied only by a particular supplier and no reasonable alternative or substitute good or service exists 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 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 technical reasons such as requirements of interchangeability or interoperability with existing equipment, software, services or installations procured under the initial procurement, or due to conditions under original supplier warranties; and
(ii) would cause significant inconvenience or substantial duplication of costs for the procuring entity;
(d) for a good purchased on a commodity market or exchange;
(e) if 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 prototype or 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 prototype or the first 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;
(f) if additional construction services that were not included in the initial contract but that were within the objectives of the original tender documentation have, due to unforeseeable circumstances, become necessary to complete the construction services described therein. However, the total value of contracts awarded for additional construction services may not exceed 50 per cent of the value of the initial contract;
(g) for purchases made under exceptionally advantageous conditions that only arise in the very short term, such as from unusual disposals, unsolicited innovative proposals, liquidation, bankruptcy or receivership, but not for routine purchases from regular suppliers;
(h) if a contract is awarded to the winner of a design contest, provided that:
(i) the contest has been organised in a manner that is consistent with this Chapter; and
(ii) the contest is judged by an independent jury with a view to award a design contract to the winner; or
(i) in so far as is strictly necessary if, for reasons of extreme urgency brought about by events unforeseeable by the procuring entity, the good or service could not be obtained in time by means of open or selective tendering.
3. For each contract awarded in accordance with paragraph 2, a procuring entity shall prepare a report in writing, or maintain a record, that includes the name of the procuring entity, the value and kind of good or service procured, and a statement that indicates the circumstances and conditions described in paragraph 2 that justified the use of limited tendering.
Article 14.10. Technical Specifications
1. A procuring entity shall not prepare, adopt or apply any technical specification or prescribe any conformity assessment procedure with the purpose or effect of creating an unnecessary obstacle to trade between the Parties.
2. In prescribing the technical specifications for the good or service being procured, a procuring entity shall, if appropriate:
(a) set out the technical specifications in terms of performance and functional requirements, rather than design or descriptive characteristics; and
(b) base the technical specifications on international standards, if these exist; or otherwise, on national technical regulations, recognised national standards or building codes.
3. A procuring entity shall not prescribe 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, in these cases, the procuring entity includes words such as "or equivalent" in the tender documentation.
4. 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.
5. For greater certainty, a procuring entity may conduct market research in developing specifications for a particular procurement.
6. For greater certainty, this Article is not intended to preclude a procuring entity from preparing, adopting or applying technical specifications to promote the conservation of natural resources or the protection of the environment.
7. For greater certainty, this Chapter is not intended to preclude a Party, or its procuring entities, from preparing, adopting or applying technical specifications required to protect sensitive government information, including specifications that may affect or limit the storage, hosting or processing of such information outside the territory of the Party.
Article 14.11. Tender Documentation
1. A procuring entity shall promptly make available or provide on request to any interested supplier tender documentation that includes all information necessary to permit the supplier to prepare and submit a responsive tender. Unless already provided in the notice of intended procurement, that tender documentation shall include a complete description of:
(a) the procurement, including the nature, scope and, if known, the quantity of the good or service to be procured or, if the quantity is not known, the estimated quantity and any requirements to be fulfilled, including any technical specifications, conformity certification, plans, drawings or instructional materials;
(b) any conditions for participation, including any financial guarantees, information and documents that suppliers are required to submit;
(c) all criteria to be considered in the awarding of the contract and the relative importance of those criteria;
(d) if there will be a public opening of tenders, the date, time and place for the opening;
(e) any other terms or conditions relevant to the evaluation of tenders; and (f) any date for delivery of a good or supply of a service.
2. In establishing any date for the delivery of a good or the supply of a service being procured, a procuring entity shall take into account factors such as the complexity of the procurement.
3. A procuring entity shall promptly reply to any reasonable request for relevant information by an interested or participating supplier, provided that the information does not give that supplier an advantage over other suppliers.
Modifications
4. If, 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 a participating supplier, or amends or re-issues a notice or tender documentation, it shall publish or provide those modifications, or the amended or re- issued notice or tender documentation:
(a) to all suppliers that are participating in the procurement 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 their initial tender, if appropriate.
Article 14.12. Time Periods
General
1. A procuring entity shall, consistent with its own reasonable needs, provide sufficient time for a supplier to obtain the tender documentation and to prepare and submit a request for participation and a responsive tender, taking into account factors such as:
(a) the nature and complexity of the procurement; and
(b) the time necessary for transmitting tenders by non-electronic means from foreign as well as domestic points if electronic means are not used.
Deadlines
2. A procuring entity that uses selective tendering shall establish that the final date for the submission of a request for participation shall not, in principle, be less than 25 days from 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 no less than 10 days.
3. Except as provided in paragraphs 4 and 5, a procuring entity shall establish that the final date for the submission of tenders shall not be less than 40 days from 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 the 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 set out in 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 the publication of the notice of intended procurement; and
(c) the procuring entity accepts tenders by electronic means.
5. A procuring entity may reduce the time period for tendering set out in paragraph 3 to no less than 10 days if:
(a) the procuring entity has published a notice of planned procurement under Article 14.6 at least 40 days and no 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) the address from which documents relating to the procurement may be obtained; and
(iv) as much of the information that is required for the notice of intended procurement as is available;
(b) a state of urgency duly substantiated by the procuring entity renders impracticable the time period for tendering set out in paragraph 3; or
(c) the procuring entity procures commercial goods or services.
6. The use of paragraph 4, in conjunction with paragraph 5, shall in no case result in the reduction of the time periods for tendering set out in paragraph 3 to less than 10 days.
7. A procuring entity shall require all interested or participating suppliers to submit requests for participation or tenders in accordance with a common deadline. These time periods, and any extension of these time periods, shall be the same for all interested or participating suppliers.
Article 14.13. 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. If a procuring entity provides a supplier with an opportunity to correct unintentional 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.
Awarding of Contracts
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 notice and tender documentation and be submitted by a supplier who satisfies the conditions for participation.
4. Unless a procuring entity determines that it is not in the public interest to award a contract, it shall award the contract to the supplier that the procuring entity has determined to be fully capable of fulfilling the terms of the contract and that, based solely on the evaluation criteria specified in the notice and tender documentation, submits:
(a) the most advantageous tender; or
(b) if price is the sole criterion, the lowest price.
5. A procuring entity shall not use options, cancel a covered procurement, or modify or terminate awarded contracts in order to avoid the obligations of this Chapter.
Article 14.14. Post-award Information Information Provided to Suppliers
1. A procuring entity shall promptly inform suppliers that have submitted a tender of the contract award decision. The procuring entity may do so in writing or through the prompt publication of the notice in paragraph 3, provided that the notice includes the date of award. If a supplier has requested the information in writing, the procuring entity shall provide it in writing.
2. Subject to Article 14.15, a procuring entity shall, on request, provide an unsuccessful supplier with an explanation of the reasons why the procuring entity did not select the unsuccessful supplier's tender or an explanation of the relative advantages of the successful supplier's tender. Publication of Award Information
3. A procuring entity shall, promptly after the award of a contract for a covered procurement, publish in an officially designated publication a notice containing at least the following information:
(a) a description of the good or service procured;
(b) the name and address of the procuring entity;
(c) the name and address of the successful supplier;
(d) the value of the contract award;
(e) the date of award or the contract date; and
(f) the procurement method used. Maintenance of Records
4. A procuring entity shall maintain the documentation, records and reports relating to tendering procedures and contract awards for covered procurement, including the records and reports provided for in Article 14.9.3, for at least three years after the award of a contract.
Article 14.15. Disclosure of Information Provision of Information to Parties
1. Upon request of the other Party, a Party shall provide promptly information sufficient to demonstrate whether a procurement was conducted fairly, impartially and in accordance with this Chapter, including, if applicable, information on the characteristics and relative advantages of the successful tender, without disclosing confidential information. 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.
Non-Disclosure of Information
2. 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 the information, disclose information that would prejudice legitimate commercial interests of a particular supplier or that might prejudice fair competition between suppliers.
3. Nothing in this Chapter shall be construed to require a Party, including its procuring entities, authorities and review bodies, to disclose confidential information if that 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 14.16. 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 period of time, 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 14.17. Domestic Review
1. In the event of a complaint by a supplier of a Party that there has been:
(a) a breach 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,
in the context of a covered procurement in which the supplier has or had an interest, the Party of the procuring entity shall encourage the supplier to seek resolution of its complaint in consultation with the procuring entity. In such instances the procuring entity shall accord timely and impartial consideration to any such complaint and ensure that the making of any such complaint is not prejudicial to the supplier's participation in ongoing or future procurement or right to seek corrective measures under administrative or judicial review procedures.
2. Each Party shall maintain at least one impartial administrative or judicial authority that is independent of its procuring entities to receive and review, in a non-discriminatory, timely, transparent and effective manner, complaints that a supplier of the other Party submits, in accordance with the laws and regulations of the Party of the procuring entity, relating to a covered procurement.
3. Each Party shall make information on complaint mechanisms generally available.
4. If the Revised Agreement on Government Procurement, set out in Annex 4 to the WTO Agreement (Revised GPA) enters into force for Australia, the present Article shall be deemed to be amended at that time so as to conform to the provisions of Article XVII (Domestic Review Procedures) of the Revised GPA.
Article 14.18. Modifications and Rectifications of Annex 14-a
1. A Party shall notify the other Party in writing of any proposed modification or rectification (modification) to its Schedule to Annex 14-A. A Party shall provide compensatory adjustments for a change in coverage if necessary to maintain a level of coverage comparable to the coverage that existed prior to the modification. The Party may include the offer of compensatory adjustment in its notice.
2. A Party is not required to provide compensatory adjustments to the other Party if the proposed modification concerns one of the following:
(a) aprocuring entity over which the Party has effectively eliminated its control or influence in respect of covered procurement by that procuring entity; or
(b) rectifications of a purely formal nature and minor modifications to its Schedule to Annex 14-A, such as:
(i) changes in the name of a procuring entity;
(ii) the merger of one or more procuring entities listed in its Schedule;
(iii) the separation of a procuring entity listed in its Schedule into two or more procuring entities that are all added to the procuring entities listed in the same Section of the Annex; and
(iv) changes in website references,
and the other Party does not object under paragraph 3 on the basis that the proposed modification does not concern subparagraph (a) or subparagraph (b).
3. Proposed modifications shall become effective provided the other Party does not object in writing within 30 days after the date of notification.
4. When the Parties do not agree on a proposed modification, including a modification regarding a procuring entity on the basis that government control or influence over the entity's covered procurement has been effectively eliminated, the objecting Party may request additional information including information on the nature of any government control or influence with a view to clarifying and reaching agreement on the proposed modification. The Parties shall make every attempt to resolve the objection through consultations.
5. The Joint Commission shall modify Annex 14-A to reflect any agreed modification.
Article 14.19. Facilitation of Participation by Smes
1. The Parties recognise the important contribution that SMEs can make to economic growth and employment and the importance of facilitating the participation of SMEs in government procurement.
2. The Parties also recognise the contribution of business alliances between suppliers of each Party in developing the capability of SMEs in government procurement.
3. If a Party maintains a measure that provides preferential treatment for SMEs, the Party shall ensure that the measure, including the criteria for eligibility, is transparent.
Article 14.20. 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 better access to their respective markets, in particular for SMEs suppliers.
2. The Parties shall endeavour to cooperate in matters such as:
(a) facilitating participation by suppliers in government procurement, in particular, with respect to SMEs;
(b) exchanging experiences and information, such as regulatory frameworks, best practices and statistics; and
(c) developing and expanding the use of electronic means in government procurement systems.
Article 14.21. Contact Points on Government Procurement
Each Party shall designate and notify a contact point on Government Procurement. The contact points shall facilitate the Parties' efforts to address matters related to the implementation and operation of this Chapter, such as:
(a) cooperation between the Parties, as provided for in Article 14.20;
(b) facilitation of participation by SMEs in covered procurement, as provided for in Article 14.19;
(c) consideration of further negotiations; and
(d) identifying and addressing any problems or other issues that may arise.
Chapter 15. Competition Policy
Article 15.1. Competition Law and Authorities and Anticompetitive Business Conduct
1. Each Party shall adopt or maintain competition laws that proscribe anticompetitive business conduct, with the objective of promoting economic efficiency and consumer welfare, and shall take appropriate action with respect to that conduct. These laws should take into account the APEC Principles to Enhance Competition and Regulatory Reform, done at Auckland, September 13, 1999.
2. Each Party shall endeavour to apply its competition laws to all commercial activities in its territory. (1) However, each Party may provide for certain exemptions from the application of its competition laws provided that those exemptions are transparent and are based on public policy or public interest grounds.
3. Each Party shall maintain an authority or authorities responsible for the enforcement of its competition laws (national competition authorities). Each Party shall provide that it is the enforcement policy of that authority or authorities to act in accordance with the objectives set out in paragraph 1 and not to discriminate on the basis of nationality.
Article 15.2. Procedural Fairness In Competition Law Enforcement
1. Each 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 the national competition authority's competition concerns;
(b) a reasonable opportunity to be represented by counsel; and
(c) a reasonable opportunity to be heard and present evidence in their defence, except that a Party may provide for the person to be heard and present evidence within a reasonable time after it imposes an interim sanction or remedy,
in particular, each Party shall afford that person a reasonable opportunity to present evidence or testimony in its defence, including: if applicable, to offer the analysis of a properly qualified expert, to cross-examine any testifying witness; and to review and rebut the evidence introduced in the enforcement proceeding (2).
2. Each Party shall adopt or maintain written procedures pursuant to which its competition law investigations are conducted. If these investigations are not subject to definitive deadlines, each Party's national competition authorities shall endeavour to conduct their investigations within a reasonable time frame.
3. Each Party shall adopt or maintain rules of procedure and evidence that apply to enforcement proceedings concerning alleged violations of its competition laws and the determination of sanctions and remedies thereunder. These rules shall include procedures for introducing evidence, including expert evidence if applicable, and shall apply equally to all parties to a proceeding.
4. Each 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 Party's laws.
5. If a Party's national competition authority issues a public notice that reveals the existence of a pending or ongoing investigation, that authority shall avoid implying in that notice that the person referred to in that notice has engaged in the alleged conduct or violated the Party's competition laws.
6. If a Party's national competition authority alleges a violation of its competition laws, that authority shall be responsible for establishing the legal and factual basis for the alleged violation in an enforcement proceeding. (3)
7. Each Party shall provide for the protection of business confidential information, and other information treated as confidential under its law, obtained by its national competition authorities during the investigative process. If a Party's national competition authority uses or intends to use that information in an enforcement proceeding, the Party shall, if it is permissible under its law and as appropriate, provide a procedure to allow the person under investigation timely access to information that is necessary to prepare an adequate defence to the national competition authority's allegations.