Article 12.5. PUBLICATION OF NOTICES
Notice of Future Procurement
1. For each procurement covered by this Chapter, the procuring entity shall publish a notice inviting suppliers to submit tenders, or a notice inviting applications to participate in the procurement. The procuring entity shall publish these notices in an electronic or printed medium, widely disseminated and easily accessible to the public, throughout the tendering process. Each Party shall maintain an updated electronic portal with links to all notices of procuring entities for procurement covered by this Chapter.
2. Each notice of future procurement shall include the following information:
(a) a description of the procurement, including the nature and, if known, the quantity of the good or service to be procured;
(b) the method of procurement to be used and an indication of whether it will involve negotiations or an electronic auction;
(c) a list of the conditions for supplier participation;
(d) the name and address of the procuring entity, and other information necessary to communicate with the procuring entity and to obtain all relevant documentation relating to the procurement and, where applicable, the cost of such documentation and the terms of payment;
(e) the address and deadline for submitting bids or requests to participate;
(f) the delivery schedule of the good or service to be contracted or the duration of the contract;
(g) where, under Article 12.6(6), a procuring entity intends to invite a limited number of qualified suppliers to submit tenders, the criteria to be applied in selecting them and, where applicable, any limitation on the number of suppliers that will be authorized to submit tenders; and
(h) a statement that the procurement is covered by this Chapter.
Notice of Planned Procurement
3. The Parties shall encourage procuring entities to publish, as early as possible in each fiscal year, notices of their respective procurement plans. Such notices shall include the subject matter of any planned procurement and the estimated date of publication of the corresponding notice of future procurement.
Article 12.6. CONDITIONS FOR PARTICIPATION
General Requirements
1. If a procuring entity stipulates that a supplier meets registration, qualification or other conditions for participation in a procurement under this Chapter, it shall publish a notice inviting suppliers to submit requests to participate. The notice shall be published sufficiently in advance so that both interested suppliers and the procuring entity have sufficient time to prepare and submit their requests to participate, evaluate such requests, and issue their decision, respectively.
2. Procuring entities shall limit the conditions for participation in a procurement covered by this Chapter to those that are essential to ensure that a supplier has the legal, financial, technical, commercial and organizational capacity necessary to carry out the relevant procurement.
3. When establishing the conditions for participation in a public procurement, the procuring entity:
(a) shall not impose as a condition for a supplier to participate in a procurement that a procuring entity of a Party has previously awarded one or more procurement contracts to that supplier; and
(b) require a supplier to have prior experience if such experience is essential to meet the requirements of the procurement.
4. In evaluating whether a supplier meets the requirements for participation, the procuring entity: (a) assess the legal, financial, technical, commercial and organizational capacity of a supplier, based on that supplier's business activities, both within and outside the territory of the Party of the procuring entity; and
(b) shall base its evaluation on the conditions that the procuring entity has previously specified in its notices or bidding documents.
5. In assessing whether a supplier meets the participation requirements, the procuring entity shall recognize as qualified all domestic suppliers and all suppliers of the other Party that meet the participation requirements.
Selective Bidding
6. When intending to use a selective bidding procedure, the procuring entity:
(a) publish a notice inviting suppliers to submit an application to participate in the procurement, providing interested suppliers with sufficient time to prepare and submit their applications to participate, and for the procuring entity to evaluate and make its decisions based on such applications; and
(b) permit all domestic suppliers and all suppliers of the other Party that have been found by the procuring entity to be in compliance with the requirements for participation to submit tenders, except where the procuring entity has specified, in the notice of intended procurement and in publicly available tender documents, a limit on the number of suppliers that will be permitted to participate and the criteria for selection.
Multiple Use Lists
7. A procuring entity may establish or maintain a multiple-use list of suppliers, provided that a notice inviting interested suppliers to register on the list is:
(a)published annually; and
(b) when published by electronic means, is available on a continuous basis.
8. The notice referred to 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 met by suppliers and the methods that the procuring entity will use to verify that each supplier meets the conditions;
(c) the name and address of the contracting entity, and other information necessary to contact the contracting entity and obtain all documentation related to the listing;
(d) the period of validity of the list, as well as the means used to renew or terminate it, or when the period of validity is not indicated, an indication of the method by which notice of termination will be given; and
(e) an indication that the list may be used for procurement covered by this Chapter.
9. The procuring entity shall include all qualified suppliers on the list within a reasonably short period of time. In the event that the period of validity of the list is one year or less, the entity may limit the inclusion of new suppliers to a period of time determined by the entity, after which the entity may refrain from including new suppliers.
Information on Contracting Entity Decisions
10. A procuring entity shall promptly inform a supplier that has submitted an application to participate in a procurement of its decision on the supplier's application.
11. When a contracting entity:
(a) reject a supplier's application to participate in a public procurement;
(b) stop considering the supplier as a qualified supplier;
(c) rejects the application for inclusion in the multiple-use list; or
(d) remove it from the multi-purpose list,
the entity shall promptly inform the supplier of its decision and, at the supplier's request, promptly communicate to the supplier in writing an explanation of the reasons for its decision.
12. Where there is evidence to justify it, the procuring entity may exclude a supplier on grounds, such as the following:
(a) bankruptcy;
(b) false statements; or
(c) significant or persistent deficiencies in the performance of any substantive requirement or obligation under a previous contract.
13. A procuring entity of a Party shall not adopt or maintain a registration system or qualification procedure, the purpose or effect of which is to create unnecessary obstacles to the participation of a supplier of the other Party in its procurement.
Article 12.7. TECHNICAL SPECIFICATIONS AND BIDDING DOCUMENTS
Technical Specifications
1. A procuring entity shall not prepare, adopt or apply technical specifications or establish conformity assessment procedures the purpose or effect of which is to create unnecessary obstacles to trade between the Parties.
2. When establishing the technical specifications of the goods or services to be procured, the procuring entity, as appropriate:
(a) detail the technical specification in terms of functional and performance requirements, rather than descriptive or design features; and
(b) base the technical specification on an international standard, or on a national technical regulation, a recognized national standard or a building code.
3. A procuring entity shall not prescribe a technical specification that requires or mentions a particular trademark or trade name, patent, copyright, model, type, origin, producer or supplier, except where there is no other sufficiently precise or intelligible way of describing the procurement requirements and provided that, in such cases, the entity includes in the bidding documents wording such as "or equivalent".
4. A procuring entity shall not solicit or accept, on terms that could have the effect of precluding competition, advice from a person that may have a commercial interest in such procurement that could be used to establish or adopt technical specifications for a particular procurement covered by this Chapter.
5. The contracting entity, in accordance with this Article, may establish, adopt or apply technical specifications, in order to promote the conservation of natural resources or to protect the environment.
Bidding Documents
6. The procuring entity shall make available to suppliers, bidding documents containing all information necessary for suppliers to prepare and submit responsive bids. Unless already contained in the notice of intended procurement, such documentation shall include a full description of:
(a) the procurement, including the nature and quantity of the good or service to be procured, or if the quantity is not known, an estimate thereof; as well as all requirements to be met, including any technical specifications, conformity assessment certification, drawings, designs or instructions;
(b) the conditions of participation of suppliers, including the list of information and documents to be submitted by suppliers in connection with such conditions of participation;
(c) all evaluation criteria to be considered in the award of the contract and the relative importance of those criteria, except when price is the sole criterion;
(d) when a public opening of bids is scheduled, the date, time and place of such opening; and
(e) any other terms or conditions relating to the contracting.
7. A procuring entity shall promptly respond to any reasonable request by a supplier participating in a procurement covered by this Chapter for relevant information, except that if the procuring entity refrains from communicating information about a particular procurement that may give the requesting supplier an advantage over its competitors in that procurement, in which case it shall so inform the procuring entity.
Modifications
8. If the procuring entity, prior to awarding a procurement contract, modifies the criteria or requirements set forth in the notice of intended procurement or tender document provided to participating suppliers, or amends or republishes a notice or tender document, it shall transmit in writing such modification, amendment or republication of notice or tender document:
(a) to all suppliers participating in the procurement at the time of the modification, amendment or republication, where the entity knows who those suppliers are and, in all other cases, in the same manner in which the initial information or documents were disseminated; and
(b) The suppliers shall be given sufficient time to modify their bids and submit their bids, as appropriate.
Article 12.8. TIME LIMITS FOR SUBMISSION OF BIDS
1. A procuring entity shall provide suppliers with sufficient time to submit their applications to participate in a procurement covered by this Chapter and to prepare and submit appropriate tenders, taking into consideration the nature and complexity of the procurement.
Deadlines
2. Except as provided in paragraphs 3 and 4, a procuring entity shall provide that the time limit for submission of tenders shall be not less than 40 days from the date of submission of tenders:
(a) the notice of future procurement has been published, in the case of a public bidding;
(b) the procuring entity notifies the suppliers that they will be invited to submit bids, regardless of whether or not it uses a multiple-use list, in the case of selective bidding.
3. The procuring entity may reduce the time limit established pursuant to paragraph 2 for the submission of bids by up to five days in each of the following circumstances:
(a) the notice of intended procurement has been published electronically;
(b) all tender documentation has been made available electronically to suppliers as of the date of publication of the notice of intended procurement; and
(c) the procuring entity has accepted bids submitted by electronic means.
4. The procuring entity may establish a period of less than 40 days for the submission of tenders, provided that the time allowed to suppliers is sufficient to prepare and submit adequate tenders, but in no case less than 10 days, prior to the final date for submission of tenders, if:
(a) the procuring entity has published a separate notice containing the information required by Article 8.5.3 at least 40 days, and not more than 12 months, in advance, and such separate notice contains a description of the procurement, specifies the deadlines for submitting bids or, where appropriate, requests to participate, and provides the address from which documents relating to the procurement may be obtained;
(b) inthe case ofa new publication or subsequent publications of notices for a public procurement of a recurring nature;
(c) the procuring entity purchases commercial goods or services; or
(d) a situation of urgency duly justified by the procuring entity makes it materially impossible to apply the time limits set forth in paragraph 2, or where applicable, in paragraph 3.
Article 12.9. DIRECT CONTRACTING
1, Provided that the procuring entity does not use this provision to prevent competition between suppliers, protect domestic suppliers, or otherwise discriminate against suppliers of the other Party, the procuring entity may contact the supplier(s) of its choice and decide not to apply Articles 12.5, 12.6, 12.7, 12.8 and 12.10 only under the following circumstances:
(a) provided that the requirements of the bidding documents have not been substantially modified and:
(i) no bids have been submitted or no supplier has submitted a request to participate in a covered procurement;
(ii) no bids have been submitted that meet the essential requirements set forth in the bidding documents;
(iii) no supplier has complied with the conditions of participation; or (iv) collusion in the submission of bids.
(b) when the goods or services can only be provided by a particular supplier and there is no substitute or reasonable alternative, due to any of the following reasons:
(i) the purpose of contracting is the execution of works of art or specialized technical works of merit, the execution of which can only be entrusted to reputable artists, recognized professionals or certain natural persons;
(ii) the good or service being procured is protected by patent, copyright or other exclusive rights; or
(iii) the absence of competition for technical reasons;
(c) in the case of additional deliveries or services by the initial supplier of goods or services that were not included in the initial procurement, and when the change of supplier for such additional goods or services:
(i) is not possible for economic or technical reasons, such as interchangeability or compatibility requirements with existing equipment, software, services or facilities purchased under the original procurement;
(ii) would cause significant inconvenience or significant additional cost to the procuring entity; or
(iii) necessary to satisfy the object of the initial offer; when the good is purchased in a commodities market;
(d) when the procuring entity acquires a prototype or a first good or service developed, at its request, in the course of a contract for research, experimentation, study or original development; the original development of a new good or service may include production or supply in limited quantity for the purpose of incorporating test results into practice and demonstrating that the good or service is suitable for large-scale production or supply in accordance with acceptable quality standards;
(e) but does not include large-scale production or supply to determine feasibility commercialization of the good or service or to recover research and development expenses;
(f) to the extent that it is strictly necessary, for reasons of extreme urgency, as a result of events that the procuring entity could not foresee, the good or service cannot be obtained in a timely manner through public or selective bidding and the use of these would result in serious damage to the entity;
(g) when a contract has been awarded to the winner of a design competition, provided that:
(i) the competition has been organized in accordance with the principles of this Chapter, especially with respect to the publication of the notice of intended procurement; and
(ii) the participants are evaluated by an independent jury with a view to awarding the design contract to a winner;
(h) when a procuring entity needs to procure consulting services on matters of a confidential nature, the disclosure of which could reasonably compromise confidential government information, cause economic instability, or similarly could be contrary to the public interest.
2. The procuring entity shall prepare a written report on each contract awarded under paragraph 1. The report shall include the name of the procuring entity, the value and type of good or service procured, as well as a description of the circumstances and conditions referred to in paragraph 1 that justified the direct procurement.
Article 12.10. PROCESSING OF BIDS AND AWARD OF CONTRACTS
1. The procuring entity shall receive, open and process all bids using procedures that ensure the fairness and impartiality of the procurement process and the confidentiality of the bids.
2. The procuring entity shall maintain the confidentiality of the bids, at least until the opening of the bids.
3. Where the procuring entity provides an opportunity for a participating supplier to correct unintentional errors of form during the period between bid opening and contract award, the procuring entity shall provide the same opportunity to all other participating suppliers.
Awarding of Contracts
4. In order for a bid to be considered for award, procuring entities shall require:
(a) from a supplier that is eligible to participate; and
(b) that is submitted in writing and complies, at the time of bid opening, with the essential requirements set forth in the bid notices and bidding documents.
5. Unless it decides not to award a procurement contract for reasons of public interest, the procuring entity shall award the contract to the supplier that it has determined to be fully capable of performing the contract and that, relying solely on the evaluation criteria set forth in the solicitation documents and notices, has submitted:
(a) the most advantageous offer; or
(b) the lowest price, when the only criterion is price.
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.
Information Provided to Suppliers
7. A procuring entity shall promptly inform suppliers participating in the procurement of its procurement decisions and, upon request, shall do so in writing. Subject to Article 12.11, and whenever a supplier so requests, the procuring entity shall provide an explanation of the reasons for not selecting its tender and the relative advantages of the successful supplier's tender.
Publication of Award Information
8. Within 72 days of the award, the procuring entity shall publish in an officially designated electronic or printed medium, a notice containing the following information on the contract:
(a) name and address of the contracting entity;
(b) description of the goods or services contracted;
(c) date of contract award;
(d) name and address of the successful supplier;
(e) value of the contract; and
(f) procurement method used and, where the procedure set forth in Article 12.9.1 has been followed, a description of the circumstances that justified the use of this procedure.
Record Retention
9. The procuring entity shall maintain reports and records on the tendering procedures covered by this Chapter, including the reports required by Article 12.9(2), and shall maintain such reports and records for a period of at least three years from the date of award of a contract.
Article 12.11. DISCLOSURE OF INFORMATION
Provision of Information to a Party
1. On request of the other Party, a Party shall promptly provide information necessary to determine whether a procurement was conducted fairly and impartially and in accordance with this Chapter, including information on the characteristics and relative advantages of the selected tender. In cases where disclosure of the information could be detrimental to competition in future tenders, the Party receiving such information shall not disclose it to any supplier, unless it consults with the Party that provided the information and the latter has given its consent.
Non-Disclosable Information
2. No Party, Contracting Entity or review authority referred to in Article 8.12 may disclose information that the person who provided it has designated as confidential in accordance with its law, except with that person's authorization.
3. A Party, including its contracting entities, administrative and judicial authorities, shall not be required under this Chapter to disclose confidential information where such disclosure:
(a) prevent the execution of the laws;
(b) may harm fair competition among suppliers;
(c) may prejudice the legitimate commercial interests of certain persons, including the protection of intellectual property; or
(d) is for other reasons contrary to the public interest.
Article 12.12. NATIONAL REVIEW PROCEDURES
1. Each Party shall ensure that its entities deal in a timely and impartial manner with any complaint by a supplier regarding a challenge to measures implementing this Chapter arising in the context of a procurement covered by this Chapter in which it has or has had an interest. Each Party shall encourage its suppliers to seek clarification from its procuring entities through consultations for the purpose of facilitating the resolution of a complaint.
2. Each Party shall establish or designate at least one impartial administrative or judicial authority independent of its procuring entities to receive and examine challenges brought by a supplier in the context of a covered procurement.
3. Each Party shall ensure that the authority it establishes or designates pursuant to paragraph 2 has written procedures that are publicly available. Each Party shall ensure that these procedures are timely, effective, transparent, non-discriminatory and provide that:
(a) the procuring entity shall respond in writing to the challenge and shall disclose all relevant documents to the review body;
(b) participants in the challenge will have: