(d) where a procuring entity may hold an electronic auction, the rules, including identification of the elements of the tender related to the evaluation criteria, on which the auction will be conducted;
(e) where there will be a public opening of tenders, the date, time, and place for the opening of tenders, where appropriate, the persons authorized to be present;
(f) any other terms or conditions, including terms of payment and any limitation on the means by which tenders may be submitted, e.g., paper or electronic means; and
(g) any dates for the delivery of goods or the supply of services.
3. A procuring entity shall promptly reply to any reasonable request for relevant information made by any interested or participating supplier in the procurement, provided that such information does not give that supplier an advantage over other suppliers and that the request was presented within the corresponding time periods.
4. If the legislation of a Party conducting a tendering procedure allows tenders to be submitted in several languages, one of those languages shall be English.
Technical Specifications
5. A procuring entity shall not prepare, adopt or apply any technical specification or prescribe any conformity assessment procedure with the purpose or the effect of creating unnecessary obstacles to international trade between the Parties.
6. In prescribing the technical specifications for the goods or services being procured, a procuring entity shall, where 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, where such exist; otherwise, on national technical regulations, recognised national standards or building codes.
7. Where design or descriptive characteristics are used in the technical specifications, a procuring entity shall indicate, where appropriate, that it will consider tenders of equivalent goods or services that demonstrably fulfill the requirements of the procurement by including words such as "or equivalent" in the tender documentation.
8. 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 such cases, the entity includes words such as "or equivalent" in the tender documentation.
9. 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.
10. For greater certainty, a procuring entity may, in accordance with this Article, prepare, adopt or apply technical specifications to promote the conservation of natural resources or protect the environment.
Modifications
11. Where, in the course of a procurement, a procuring entity modifies the criteria or technical requirements set out in a notice of intended procurement or tender documentation provided to participating suppliers or amends or reissues a notice or tender documentation according to the legislation of each Party, it shall transmit in writing all such modifications or amended or reissued notice or tender documentation:
(a) to all the suppliers that are participating at the time of the modification, amendment, or reissuance if the identities of such suppliers are known, and, in all other cases, in the same manner that the original information was transmitted; and
(b) in adequate time to allow such suppliers to modify and resubmit amended tenders, as appropriate.
Article 8.11. LIMITED TENDERING
1. Provided that it does not use this provision for the purposes 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 under the following circumstances:
(a) provided that the requirements of the tender documentation are not substantially modified where:
(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) where 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 requirement is for a work of art;
(ii) the protection of intellectual property rights or other exclusive rights; or
(iii) due to 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 where:
(i) a change of supplier for such additional goods or services 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) such separation would cause significant inconvenience or substantial duplication of costs for the procuring entity;
(d) insofar as is strictly necessary where, 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) where 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) where a contract is awarded to a winner of a design contest provided that:
(i) the contest has been organized 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;
(h) where additional construction services that were not included in the initial contract, but fell under the objectives of the original tender documentation have, due to unforeseeable circumstances, become necessary to complete the construction services described therein; and
(i) in the cases established by each Party in Annex 8-A.
2. For each contract awarded under paragraph 1, a procuring entity shall maintain records or prepare a written report that includes:
(a) the name of the procuring entity;
(b) the value and kind of goods or services procured; and
(c) a statement indicating the circumstances and conditions described in paragraph 1 that justify the use of limited tendering
Article 8.12. ELECTRONIC AUCTIONS
Where a procuring entity intends to conduct a covered procurement using an electronic auction, the entity may 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 where 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 auction.
Article 8.13. NEGOTIATION
1. A Party may provide for its procuring entities to conduct negotiations, where:
(a) the entity has indicated its intent to conduct negotiations in the notice of intended procurement required under Article 8.6; 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) where negotiations are concluded, provide a common deadline for the remaining participating suppliers to submit any new or revised tenders.
Article 8.14. TREATMENT OF TENDERS AND AWARDING OF CONTRACTS
Receipt and Opening 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.
2. A procuring entity shall treat all tenders in confidence until at least the opening of the tenders. In particular, the procuring entity shall not provide information to particular suppliers that might prejudice fair competition between suppliers.
3. According with the legislation of a Party, a procuring entity shall receive a tender after the time specified for receiving tenders if the delay is due solely to an event unforeseen by the procuring entity.
4. Where a procuring entity provides suppliers with opportunities to correct errors of form, the entity shall provide the same opportunities to all participating suppliers.
Awarding of Contracts
5. A procuring entity shall require that in order to be considered for an award, a tender shall be submitted in writing and shall, at the time of opening, comply with the essential requirements set out in the notices and tender documentation and be from a supplier that satisfies the conditions for participation.
6. Unless a procuring entity determines that it is not in the public interest to award a contract, the entity shall award the contract to the supplier that it has determined to be
capable of fulfilling the term of the contract and, based solely on the evaluation criteria
specified in the notices and tender documentation, has submitted:
(a) the most advantageous tender; or
(b) where price is the sole criterion, the lowest price.
7. Where 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.
8. A procuring entity may not cancel a covered procurement, or terminate or modify awarded contracts in a manner that circumvents this Chapter.
Article 8.15. POST-AWARD INFORMATION
1. A procuring entity shall promptly inform suppliers that have submitted tenders of its contract award decision. A procuring entity shall, upon request, provide an unsuccessful supplier with the reasons that the entity did not select that supplier’s tender and the relative advantages of the successful supplier’s tender.
2. After the award of each contract covered by this Chapter, a procuring entity shall as early as possible, according to the time limit established in each Party´s legislation publish a notice in the appropriate paper or electronic medium listed in Annex 8-C. Where the entity publishes the notice only in an electronic medium, the information shall remain readily accessible for a reasonable period of time. The notice shall include at least the following information:
(a) a description of the goods or services procured;
(b) the name and address of the procuring entity;
(c) the name of the successful supplier;
(d) the value of the successful tender;
(e) the date of award or the contract date; and
(f) the type of procurement method used and in cases where limited tendering was used in accordance with Article 8.11, a description of the circumstances justifying the use of limited tendering, which may be made available in the corresponding files or electronic media.
3. Each procuring entity shall, for a period of at least three years from the date it awards a contract, maintain:
(a) records and reports of tendering procedures and contract awards relating to covered procurement, including the records or reports required under Article 8.11; and
(b) where the procuring entity conducts procurement entirely by electronic means, data that ensure the appropriate traceability of the conduct of covered procurement.
Article 8.16. DOMESTIC REVIEW PROCEDURES
1. Each Party shall provide a timely, effective, transparent, and non-discriminatory administrative or judicial review procedure through which a supplier may present a challenge with respect to the obligations of a Party and its entities under this Chapter that may arise in the context of a covered procurement, in which the supplier has, or has had, an interest. The procedural rules for all challenges shall be in writing and made generally available.
2. Each supplier shall be allowed a sufficient period of time to prepare and submit a challenge, which in no case shall be less than 10 days from the time when the basis of the challenge became known or reasonably should have become known to the supplier.
3. 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 a Party submits, in accordance with the Party’s law, relating to a covered procurement.
4. Where a body other than an authority referred to in paragraph 3 initially reviews a challenge, the Party shall ensure that the supplier may appeal the initial decision to an impartial administrative or judicial authority that is independent of the procuring entity whose procurement is the subject of the challenge.
5. A review body that is not a court shall either be subject to judicial review or have procedures that provide that:
(a) the procuring entity shall respond in writing to the challenge and disclose all relevant documents to the review body;
(b) the participants to the proceedings (hereinafter referred to as the "participants") shall have the right to be heard prior to a decision of the review body being made on the challenge;
(c) the participants shall have the right to be represented and accompanied;
(d) the participants shall have access to all proceedings;
(e) the participants shall have the right to request that the proceedings take place in public and that witnesses may be presented; and
(f) decisions or recommendations relating to supplier challenges shall be provided to interested supplier, within a reasonable time, in writing, with an explanation of the basis for each decision or recommendation.
6. Each Party shall adopt or maintain procedures that provide for:
(a) rapid interim measures to preserve the supplier's opportunity to participate in the procurement. Such interim measures may result in suspension of the procurement process. The procedures may provide that overriding adverse consequences for the interests concerned, including the public interest, may be taken into account when deciding whether such measures should be applied. Just cause for not acting shall be provided in writing; and
(b) corrective action or compensation for the loss or damages suffered, in accordance with each Party's legislation, in cases where a review body has determined that there has been a breach or a failure as set out in paragraph 1.
Article 8.17. MICRO, SMALL, AND MEDIUM ENTERPRISES’ PARTICIPATION
1. The Parties recognize the importance of the participation of micro, small, and medium-sized enterprises (hereinafter referred to as the “MSMEs”) in government procurement and of business alliances between suppliers of each Party, and in particular of MSMEs, including the joint participation in tendering procedures.
2. The Parties shall be able to adopt, develop, maintain or implement measures to promote opportunities on procurement policies for the development of its MSMEs; including preferential rules.
Article 8.18. COOPERATION AND TECHNICAL ASSISTANCE ON GOVERNMENT PROCUREMENT
1. The Parties agree that it is in their common interest to promote cooperation and technical assistance initiatives on issues related to government procurement.
2. The Parties shall endeavour to cooperate in matters such as:
(a) exchange of experiences and information, such as regulatory frameworks and best practices in the fields of sustainable procurement and innovation procurement;
(b) capacity building and technical assistance to suppliers with respect to access to the government procurement market;
(c) knowledge and technology transfer for procurement entities in order to improve institutional capabilities; and
(d) improving processes for electronic procurement.
Article 8.19. RECTIFICATIONS AND MODIFICATIONS TO COVERAGE
1. A Party may make rectifications of a purely formal nature to its coverage under this Chapter, or minor amendments to its Schedules in Annex 8-A, provided that it notifies the other Party in writing and the other Party does not object in writing within 30 days of receipt of the notification. A Party that makes such a rectification or minor amendment need not provide compensatory adjustments to the other Party.
2. A Party may otherwise modify its coverage under this Chapter provided that it:
(a) notifies the other Party in writing and simultaneously offers in the notification appropriate compensatory adjustments to the other Party to maintain a level of coverage comparable to that existing prior to the modification where necessary; and
(b) the other Party shall not object in writing within 30 days of receipt of the notification.
3. A Party need not provide compensatory adjustments in those circumstances where the Parties agree that the proposed modification covers a procuring entity over which a Party has effectively eliminated its control or influence. Where a Party objects to the assertion that such government control or influence has been effectively eliminated, the objecting Party shall object in writing within 30 days of receipt of the notification and may request further information or consultations with a view to clarifying the nature of any government control or influence and reaching agreement on the procuring entity’s continued coverage under this Chapter.
4. Where the Parties concerned have agreed on rectification, minor amendment, adjustment or proposed modification, or where no objection has been made within 30 days of the receipt of the notification, the modifications shall be made in conformity with the provisions of paragraph 5.
5. The Joint Committee of the Agreement shall modify the relevant section of Annex 8-A to reflect any agreed rectification, minor amendment or modification.
Article 8.20. COMMITTEE ON GOVERNMENT PROCUREMENT
1. The Parties hereby establish a Committee on Government Procurement (hereinafter referred to as the “Committee”) comprising representatives of each Party.
2. The Committee shall:
(a) evaluate the implementation of this Chapter, including its application, and recommend to the Parties the appropriate activities;
(b) coordinate the cooperation activities;
(c) evaluate and follow up the activities related to cooperation that the Parties present;
(d) work as an enquiry point for the purposes of the notifications under Article 8.19; and
(e) carry out other functions as may be assigned by the Joint Committee or agreed by the Parties.
3. The Committee shall meet upon request of a Party or as mutually agreed by the Parties.
4. Meetings may be conducted in person or by any technological means available to the Parties.
Article 8.21. DEFINITIONS
For the purposes of this Chapter:
conditions for participation means registration, qualification, or other pre-requisites for participation in a procurement;
construction services means a service that has as its objective the realization by whatever means of civil or building works, based on Division 51 of the United Nations Provisional Central Product Classification;
electronic auction means an iterative process that involves the use of electronic means for the presentation by suppliers of either new prices, or new values for quantifiable nonprice elements of the tender related to the evaluation criteria, or both, resulting in a ranking or re-ranking of tenders; (2)
in writing or written means any worded or numbered expression that can be read, reproduced and later communicated. It may include electronically transmitted and stored information;
limited tendering means a procurement method whereby the procuring entity contacts a supplier or suppliers of its choice;
list of suppliers means a list that a procuring entity has determined satisfy the conditions for participation in that list, and that the procuring entity intends to use more than once;
measure means any law, regulation, procedure, administrative guidance, practice or act of a procuring entity relating to a covered procurement;
notice of intended procurement means a notice published by a procuring entity inviting interested suppliers to submit a request for participation, a tender, or both;
offset means any condition or undertaking that encourages local development or improves a Party's balance-of-payments accounts, such as the use of domestic content, the licensing of technology, investment, counter-trade and similar action or requirement;
open tendering means a procurement method whereby all interested suppliers may submit a tender;
person means a natural person or a juridical person;
procuring entity means an entity covered under a Party's Annex 8-A;
qualified supplier means a supplier that a procuring entity recognizes as having satisfied the conditions for participation;
selective tendering means a procurement method whereby only qualified suppliers are invited by the procuring entity to submit a tender;
services includes construction services, unless otherwise specified;
standard means a document approved by a recognized body that provides for common and repeated use, rules, guidelines or characteristics for goods or services, or related processes and production methods, with which compliance is not mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements as they apply to a good, service, process or production method;
supplier means a person or group of persons that provides or could provide goods or services to a procuring entity; and
technical specification means a tendering requirement that:
(a) lays down the characteristics of goods or services to be procured, including quality, performance, safety and dimensions, or the processes and methods for their production or provision; or
(b) addresses terminology, symbols, packaging, marking or labelling requirements, as they apply to a good or service