(a) make efforts to minimize differences between their respective qualification procedures;
(b) where they maintain registration systems, make efforts to minimize differences between the systems.
3. The Parties, including their procuring entities, shall not adopt or apply any registration system or qualification procedures for the purpose of, or with the effect of, creating unnecessary obstacles to the participation of suppliers of the other Party in their procurement.
Article 10.9. INFORMATION ON FUTURE PROCUREMENT
Procurement Documents
1. A procuring entity shall provide in a timely manner to suppliers interested in participating in a procurement, procurement documents that include all information necessary to enable them to prepare and submit responsive tenders, in accordance with Annex 10-B. Where a procuring entity does not publish the procurement documents by electronic means accessible to all interested suppliers, it shall make them promptly available in written form.
2. A procuring entity shall respond promptly to any reasonable request for information submitted by suppliers participating in a covered procurement, provided that the entity does not make available information that would give the requesting supplier an advantage over its competitors in the specific procurement.
Technical Specifications
3. A procuring entity shall not prepare, adopt, or apply any technical specification, or require any conformity assessment procedure, that has the purpose or effect of creating unnecessary obstacles to trade between the Parties.
4. In establishing any technical specification for goods or services to be procured, a procuring entity shall, where appropriate:
(a) set the technical specification in terms of performance and functional requirements, rather than descriptive or design characteristics; and
(b) base the technical specification on international standards, where applicable, or otherwise on national technical regulations, recognized national standards, or building codes.
5. 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, expressions such as "or equivalent" shall also be included in the procurement documents.
6. A procuring entity shall not solicit or accept, in a manner that may have the effect of precluding competition, advice that could be used in preparing or adopting any technical specification for a specific procurement from any person that may have a commercial interest in that procurement.
7. For greater certainty, this Article is not intended to prevent a procuring entity from preparing, adopting or applying technical specifications to promote the conservation of natural resources or protect the environment.
Modifications
8. Where, in the course of a covered procurement, a procuring entity modifies the criteria or technical requirements set forth in a notice or procurement document provided to participating suppliers, or modifies a notice or procurement document, it shall transmit such modifications in writing:
(a) to all suppliers participating at the time of the modification of the information, if the identification of such suppliers is known, and in all other cases, in the same manner as the original information was transmitted; and
(b) in sufficient time to allow suppliers to modify and resubmit their corrected bids, as appropriate.
Article 10.10. TIME LIMITS
1. A procuring entity shall provide suppliers with sufficient time to submit applications to participate in a procurement and to prepare and submit responsive tenders, taking into account the nature and complexity of the procurement. A procuring entity shall allow a period of not less than 40 days from the date on which the notice of intended procurement is published and the final date for submission of tenders.
2. Notwithstanding paragraph 1, a procuring entity may provide for a period of less than 40 days, but in no case less than 10 days, in the following circumstances:
(a) where the procuring entity has published a separate notice containing a description of the procurement, the approximate time limits for the
(a) where the procuring entity has published a separate notice containing a description of the procurement, the approximate time limits for submission of tenders or, where appropriate, conditions for participation in a procurement, and the address where documentation relating to the procurement may be obtained, not less than 40 days and not more than 12 months in advance;
(b) in the case of a new, second or subsequent publication of notices for a procurement of a recurring nature;
(c) when an urgent situation duly justified by a procuring entity makes it impracticable to comply with the time limit stipulated in paragraph 1; or
(d) when the procuring entity purchases commercial goods or services.
3. A Party may provide that a procuring entity may reduce the deadline for submitting tenders set out in paragraph 1 by five days in each of the following circumstances:
(a) when the notice of intended procurement is published by electronic means;
(b) when all procurement documents that are made publicly available by electronic means are published as of the date of publication of the notice of intended procurement; and
(c) if the entity accepts bids by electronic means.
The use of this paragraph, in conjunction with paragraph 2, may not result in reducing the tendering periods set forth in paragraph 1 to less than 10 days from the date of publication of the notice of intended procurement.
Article 10.11. PROCUREMENT PROCEDURES
Open Tendering
A procuring entity shall award its procurement contracts by means of open tendering procedures.
Direct Procurement
Provided that this provision is not used to prevent competition among suppliers or in a manner that discriminates against suppliers of the other Party, or protects domestic suppliers, a procuring entity may use a direct procurement procedure and consider not applying Articles 10.6 through 10.10, 10.13, 10.14.1 through 10.14.4, 10.14.6, and 10.15.1, only in the following circumstances:
(a) provided that the requirements of the procurement documents are not substantially modified, when:
(i) no bid was submitted or no supplier has requested to participate;
(ii) no bid meeting the essential requirements of the bidding documents was submitted;
(iii) no supplier complied with the conditions for participation; or
(iv) there was collusion in the submission of bids;
(b) where the goods or services can be supplied only by a particular supplier and there is no reasonable alternative or substitute goods or service due to any of the following reasons:
(i) the requirement is for the performance of a work of art;
(ii) the protection of patents, copyrights or other exclusive intellectual property rights; or
(iii) due to the absence of competition for technical reasons, as in the case of the procurement of intuitu personae services;
(c) for additional deliveries or performance by the initial supplier of goods or services that were not included in the initial procurement, where the change of supplier of such additional goods or services:
(i) cannot be made for economic or technical reasons such as interchangeability or compatibility requirements with existing equipment, software, services, or facilities that were the subject of the initial procurement; and
(ii) would cause significant inconvenience or substantial duplication of costs to the procuring entity,
in the case of construction services, the total value of contracts awarded for such additional services shall not exceed 50 percent of the amount of the initial contract, provided that such services were contemplated in the objectives contained in the procurement documents and have become necessary to complete the work due to unforeseen reasons;
(d) to the extent strictly necessary, when for reasons of extreme urgency occasioned by events unforeseen by the procuring entity, the goods or services cannot be obtained in time through open bidding procedures, and the use of such procedures would result in serious prejudice to the procuring entity; (e) to the extent strictly necessary, when for reasons of extreme urgency occasioned by events unforeseen by the procuring entity, the goods or services cannot be obtained in time through open bidding procedures, and the use of such procedures would result in serious prejudice to the procuring entity;
(e) for purchases of goods in a commodity market;
(f) when a procuring entity procures a prototype or a first limited quantity of goods or contracts for a service that is developed on request in the course of, and for, a particular contract for research, experiment, study, or original development; or
(g) where a contract is awarded to the winner of a design competition, provided that:
(i) the competition has been organized in a manner that is consistent with the principles of this Chapter, in particular with respect to the publication of notice of the prospective procurement; and
(ii) the participants are qualified or evaluated by an independent jury or body with a view to the conclusion of a design contract that is awarded to a winner.
3. A procuring entity shall maintain records or prepare a written report for each procurement awarded under Article 10.15.3. Where a Party prepares written reports under this paragraph, they shall include the name of the procuring entity, the value and nature of the goods or services procured, and a justification indicating the circumstances and conditions described in paragraph 2 that justify the use of direct procurement. Where a Party maintains records, such records shall indicate the circumstances and conditions described in paragraph 2 that justify the use of other procurement procedures.
Article 10.12. ELECTRONIC AUCTIONS
Where a procuring entity intends to conduct a covered procurement using an electronic auction, the procuring entity shall provide to each participant, prior to the commencement of the electronic auction, the following information:
(a) the automatic evaluation method, including the mathematical formula, that is based on the evaluation criteria set out in the procurement documents and that will be used in the automatic ranking or reclassification during the auction;
(b) the results of any initial evaluation of the elements of its bid when the contract is awarded on the basis of the most advantageous bid; and
(c) any other relevant information on the conduct of the auction.
Article 10.13. NEGOTIATIONS
1. A Party may provide that its procuring entities may engage in negotiations:
(a) where in the context of a procurement in which such intention has been indicated in the notice of intended procurement; or
(b) if it appears from the evaluation that no tender is clearly the most advantageous in accordance with the specific evaluation criteria set forth in the notice of intended procurement or the tender documents.
2. In the course of negotiations, procuring entities shall not discriminate among participating suppliers.
3. Procuring entities shall:
(a) ensure that any elimination of suppliers participating in the negotiations is carried out in accordance with the evaluation criteria set forth in the notice of intended procurement or tendering documents; and
(b) at the conclusion of negotiations, allow all participants, who have not been eliminated, an equal maximum period of time to submit new or revised tenders.
Article 10.14. OPENING OF BIDS AND AWARD OF CONTRACTS
Treatment of Tenders
1. A procuring entity shall receive and process all tenders under procedures that ensure the equality and fairness of the procurement process.
2. A procuring entity shall treat tenders confidentially, at least until the tenders are opened. In particular, a procuring entity shall avoid providing information to suppliers that could prejudice fair competition among suppliers.
3. Where a procuring entity provides suppliers the opportunity to correct any unintentional errors of form between the period of bid opening and contract award, the procuring entity shall provide the same opportunity to all participating suppliers.
Contract Award
4. A procuring entity shall require that, in order to be considered for an award, a tender:
(a) is submitted in writing by a supplier that complies with all conditions for participation; and
(b) at the time of opening, be in conformity with the essential requirements specified in the notices and procurement documents.
5. Unless a procuring entity determines that the award of a procurement contract would be against the public interest, the procuring entity shall award the contract to the supplier that the procuring entity has determined meets the conditions of participation and is fully capable of performing the contract and, whose tender is considered the most advantageous based solely on the requirements and evaluation criteria specified in the notices and procurement documents, or where price is the sole evaluation criterion, that of the lowest price.
6. When a procuring entity receives a tender whose price is abnormally lower than the prices of the other tenders submitted, the entity may verify with the supplier whether the supplier complies with the conditions for participation and has the capacity to perform under the contract.
7. A procuring entity may not cancel a procurement or terminate or modify a contract that has been awarded for the purpose of circumventing this Chapter.
Article 10.15. TRANSPARENCY OF PROCUREMENT INFORMATION
Information to be Provided to Suppliers
1. A procuring entity shall promptly inform participating suppliers of its decision on the award of a procurement contract, and upon request, shall do so in writing. Subject to Article 10.16, a procuring entity shall, upon request, provide to the unsuccessful supplier the reasons for its decision and the relative advantages of the successful tender.
Publication of Award Information
2. Not later than 60 days after an award, a procuring entity shall publish in an electronic medium or by print media that is widely disseminated and easily accessible to the public, a notice that includes, at a minimum, the following information about the contract award:
(a) the name of the procuring entity;
(b) a description of the goods or services being procured;
(c) the date of the award;
(d) the name of the supplier to whom the contract was awarded;
(e) the value of the contract; and
(f) the type of procurement method used and, where direct procurement was used, an indication of the circumstances justifying the use of such procedure in accordance with Article 10.11.2.
Record Keeping
3. A procuring entity shall maintain reports or records of procurement proceedings relating to covered procurement, including the reports referred to in Article 10.11.3, and shall maintain such reports or records for a period of at least three years from the date of award of a contract.
Article 10.16. DISCLOSURE OF INFORMATION
Disclosure of Information to the other Party
1. On request of a Party, the other Party shall provide in a timely manner information necessary to determine whether a procurement has been conducted fairly, impartially, and in accordance with this Chapter. Such information shall include information on the characteristics and relative advantages of the successful tender. Where the disclosure of such information would prejudice fair competition, the Party receiving the information shall not disclose it to any supplier unless it obtains the consent of the Party that provided such information, after consultation with that Party.
Non-Disclosure of Information
2. No Party, including its procuring entities, authorities or review bodies, may disclose information that the person providing the information has designated as confidential in accordance with its law, except with the authorization of that person.
3. Nothing in this Chapter shall be construed to require a Party, including its contracting entities, authorities and review bodies, to disclose confidential information under this Chapter if such disclosure would:
(a) impede law enforcement;
(b) prejudice fair competition between suppliers;
(c) prejudice the legitimate commercial interests of private parties, including the protection of intellectual property; or
(d) otherwise be contrary to the public interest.
Article 10.17. DOMESTIC REVIEW PROCEDURES FOR THE PROVISION OF REMEDIES
1. Each Party shall ensure that its procuring entities consider, in a fair and timely manner, any complaint by its suppliers regarding an allegation of non-compliance with this Chapter arising in the context of a covered procurement in which they have or have had an interest. Each Party shall encourage its suppliers to seek clarification from its procuring entities through consultations with a view to facilitating the resolution of any such complaint.
2. Each Party shall provide a timely, effective, transparent and non-discriminatory administrative or judicial review procedure, in accordance with the principle of due process, through which a supplier may submit a complaint alleging a breach of this Chapter or, where the supplier is not entitled to directly allege a breach of the Chapter under a Party's law, a failure to comply with measures taken by a Party to implement the Chapter, arising in the context of covered procurement in which the supplier has or has had an interest.
3. Each Party shall establish or designate at least one impartial administrative or judicial authority, independent of its procuring entities, to receive and review a challenge brought by a supplier in a covered procurement, and to issue appropriate determinations and recommendations.
4. Where a body other than the 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. Each Party shall adopt or maintain procedures that provide for:
(a) expeditious interim measures to preserve the supplier's ability to participate in the procurement, to be applied by the procuring entity or by the impartial authority referred to in paragraph 3. Such measures may have the effect of suspending the procurement proceedings. The procedures may provide that the prevailing adverse consequences for the interests concerned, including the public interest, may be taken into account in deciding whether such measures should be applied. The reason for not taking such measures shall be stated in writing; and
(b) where a review body has determined the existence of a breach referred to in paragraph 2, remedial measures or compensation for loss or damage suffered, in accordance with the law of each Party.
Article 10.18. MODIFICATIONS AND AMENDMENTS TO COVERAGE
1. Where a Party modifies its procurement coverage under this Chapter, the Party 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.
2. Notwithstanding paragraph 1(b), a Party need not grant compensatory adjustments where:
(a) the modification in question is a minor amendment or a rectification purely of a formal nature; or
(b) the proposed modification covers an entity over which the Party has effectively eliminated control or influence.
3. If the other Party does not agree that:
(a) a proposed adjustment under the scopes of paragraph 1(b) is adequate to maintain a comparable level of a mutually agreed coverage;
(b) the proposed modification is a minor amendment or rectification under the scope of paragraph 2(a); or
(c) the proposed modification covers a contracting entity over which the Party has effectively eliminated its control or influence under the scope of paragraph 2(b),
must object in writing within 30 days of receipt of the notification referred to in paragraph 1 or agreement on the proposed change or modification shall be deemed to have been reached even for the purposes of Chapter 18 (Dispute Settlement).
4. Where the Parties agree on the proposed modification, rectification or amendment, including where a Party has not objected within 30 days under the scope of paragraph 3, the Parties shall give effect to the agreement by immediately amending Annex 10-A through the Commission.
Article 10.19. INTEGRITY IN GOVERNMENT PROCUREMENT PRACTICES
Each Party shall establish or maintain procedures for declaring the ineligibility to participate in the Party's procurement, either indefinitely or for a prescribed period, of suppliers that the Party determines to have engaged in illegal or fraudulent activities in connection with illegal or fraudulent activities related to government procurement. Upon request of the other Party, the Party receiving the request shall identify the suppliers determined to be ineligible under these procedures and, where appropriate, exchange information with respect to such suppliers or the fraudulent or illegal activity.
Article 10.20. FURTHER NEGOTIATIONS
At the request of a Party, the other Party may consider additional negotiations for the purpose of expanding the scope and coverage of this Chapter. If as a result of these negotiations the Parties agree to modify the Annexes to this Chapter, the result shall be submitted to the Committee on Government Procurement established in Article 10.23 for implementation.
Article 10.21. PARTICIPATION OF MICRO, SMALL, AND MEDIUM-SIZED ENTERPRISES
1. The Parties recognize the importance of the participation of micro, small and medium-sized enterprises in government procurement.
2. The Parties also recognize the importance of business alliances between suppliers of each Party, and in particular micro, small and medium-sized enterprises, including joint participation in tendering procedures.
Article 10.22. COOPERATION
1. The Parties recognize the importance of cooperation as a means of achieving a better understanding of their respective government procurement systems, as well as improved access to their respective markets, in particular for micro, small, and medium-sized enterprises.
2. The Parties shall make their best efforts to cooperate on issues such as:
(a) exchange of experiences and information, including regulatory framework, best practices and statistics;
(b) development and use of electronic means of information in government procurement systems;
(c) training and technical assistance to suppliers on access to the public procurement market; and
(d) institutional strengthening for compliance with this Chapter, including training of public officials.
Article 10.23. GOVERNMENT PROCUREMENT COMMITTEE
1. The Parties hereby establish the Committee on Government Procurement (hereinafter referred to as the "Committee"), composed of representatives of each Party.
2. The functions of the Committee shall include, inter alia:
(a) monitor the implementation and administration of this Chapter, including its use and shall recommend appropriate activities to the Commission;
(b) report to the Commission on the implementation and administration of this Chapter, as appropriate;
(c) evaluate and monitor cooperative activities;
(d) consider additional negotiations with the objective of expanding the coverage of this Chapter; and
(e) discuss any other matter related to this Chapter.
3. Unless otherwise agreed by the Parties, the Committee shall meet at least once a year, on the date and according to the agenda previously agreed. The first meeting of the Committee shall be held no later than one year after the date of entry into force of this Agreement. By mutual agreement, the Parties may hold extraordinary meetings.
4. The meetings may be held by any means agreed upon by the Parties. When they are face-to-face, they shall be held alternately in the territory of each Party, and it shall be the responsibility of the host Party to organize the meeting.