(b) astate 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. Aprocuring 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.
8. When a procuring entity covered under Section B and C of a Party's Schedule to Annex 14- A has selected all or a limited number of qualified suppliers, the time period for tendering may be fixed by mutual agreement between the procuring entity and the selected suppliers. In the absence of agreement, the period shall not be less than 10 days.
Article 14.11. Tender Documentation
1. A procuring entity shall make available to suppliers tender documentation that includes all information necessary to allow suppliers to prepare and submit responsive tenders.
2. Unless already provided in the notice of intended procurement, that tender documentation shall include at least a complete description of:
(a) the procurement, including the nature and the quantity of the goods or services 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 for suppliers, including any financial guarantees, information and tender documents that suppliers are required to submit in relation to those conditions;
(c) all criteria to be considered in the awarding of the contract and, except where price is the sole criterion, the relative importance of such criteria;
(d) where the procuring entity will hold an electronic auction, the rules, including identification of the elements of the tender related to the evaluation criteria, upon which the auction will be conducted;
(e) if there will be a public opening of tenders, the date, time and place for the opening of tenders;
(f) any date or time frame for delivery of goods or supply of services, or the duration of the contract; and
(g) any other terms or conditions, including terms of payment and the means by which tenders may be submitted.
3. 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.
4. When a procuring entity does not publish all tender documents by electronic means, a procuring entity shall make promptly available the tender documentation at the request of any interested supplier.
5. 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
6. 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 the notice or tender documentation referred to in paragraph 2, it shall publish or provide those modifications or the amended or re-issued notice or tender documentation in writing:
(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. Conditions for Participation
1. A procuring entity shall limit any conditions for participation in a covered procurement to those conditions that ensure that a supplier has the legal and financial capacities and the commercial and technical abilities to fulfil the requirements of that procurement.
2. In establishing the conditions for participation, a procuring entity:
(a) shall not impose the condition that, in order for a supplier to participate in a procurement, the supplier has previously been awarded one or more contracts by a procuring entity of a given Party or that the supplier has prior work experience in the territory of that Party; and
(b) may require relevant prior experience if essential to meet the requirements of the procurement.
3. In assessing whether a supplier satisfies the conditions for participation, a procuring entity shall:
(a) evaluate the financial capacity and the commercial and technical abilities of a supplier on the basis of that supplier's business activities both inside and outside the territory of the Party of the procuring entity; and
(b) base its evaluation solely on the conditions that the procuring entity has specified in advance in notices or tender documentation.
4. If authorised by a Party's measures and there is supporting material, a Party, including its procuring entities, may exclude a supplier on grounds such as:
(a) bankruptcy or insolvency;
(b) false declarations;
(c) significant or persistent deficiencies in the performance of any substantive requirement or obligation under a prior contract or contracts;
(d) final judgments in respect of serious crimes or other serious offences;
(e) professional misconduct or actions or omissions that adversely reflect on the commercial integrity of the supplier; or
(f) failure to pay taxes.
Article 14.13. Qualification of Suppliers Registration Systems and Qualification Procedures
1. A Party, including its procuring entities, may maintain a supplier registration system under which interested suppliers are required to register and provide certain information.
2. No Party, including its procuring entities, shall:
(a) adopt or apply any registration system or qualification procedure with the purpose or the effect of creating unnecessary obstacles to the participation of suppliers of the other Party in its procurement; or
(b) use such registration system or qualification procedure to prevent or delay the inclusion of suppliers of the other Party on a list of suppliers or prevent those suppliers from being considered for a particular procurement.
Selective Tendering
3. If a Party's measures authorise the use of selective tendering, and if a procuring entity intends to use selective tendering, the procuring entity shall:
(a) publish a notice of intended procurement that invites suppliers to submit a request for participation in a covered procurement; and
(b) include in the notice of intended procurement the information specified in Article 14.8.3 (a), (c), (d), (e), (f), (i) and (j).
4. The procuring entity shall:
(a) publish the notice sufficiently in advance of the procurement to allow interested suppliers to request participation in the procurement;
(b) provide, by the commencement of the time period for tendering, at least the information in Article 14.8.3 (b), (g) and (h) to the qualified suppliers that it notifies as specified in Article 14.10.3 (b); and
(c) allow all qualified suppliers to submit a tender, unless the procuring entity states in the notice of intended procurement a limitation on the number of suppliers that will be permitted to tender and the criteria or justification for selecting the limited number of suppliers.
5. If the tender documentation is not made publicly available from the date of publication of the notice referred to in paragraph 3, the procuring entity shall ensure that the tender documentation is made available at the same time to all the qualified suppliers selected in accordance with paragraph A(c).
Multi-Use Lists
6. A Party, including its procuring entities, may establish or maintain a multi-use list provided that it publishes annually, or otherwise makes continuously available by electronic means, a notice inviting interested suppliers to apply for inclusion on the list. The notice shall include:
(a) a description of the goods and services, or categories thereof, for which the list may be used;
(b) the conditions for participation to be satisfied by suppliers for inclusion on the list and the methods that the procuring entity or other government agency will use to verify a supplier's satisfaction of those conditions;
(c) the name and address of the procuring entity or other government agency and other information necessary to contact the procuring entity and to obtain all relevant documents relating to the list;
(d) the period of validity of the list and the means for its renewal or termination or, if the period of validity is not provided, an indication of the method by which notice will be given of the termination of use of the list;
(e) the deadline for submission of applications for inclusion on the list, if applicable; and
(f) an indication that the list may be used for procurement covered by this Chapter, unless that indication is publicly available through information published pursuant to Article 14.7.2.
7. A Party, including its procuring entities, that establishes or maintains a multi-use list, shall include on the list, within a reasonable period of time, all suppliers that satisfy the conditions for participation set out in the notice referred to in paragraph 6.
8. If a supplier that is not included on a multi-use list submits a request for participation in a procurement based on the multi-use list and submits all required documents, within the time period provided for in Article 14.10.2, a procuring entity shall examine the request. The procuring entity shall not exclude the supplier from consideration in respect of the procurement unless the procuring entity is not able to complete the examination of the request within the time period allowed for the submission of tenders.
Information on Procuring Entity Decisions
9. A procuring entity or other entity of a Party shall promptly inform any supplier that submits a request for participation in a procurement or application for inclusion on a multi-use list of the decision with respect to the request or application.
10. If a procuring entity or other entity of a Party rejects a supplier's request for participation or application for inclusion on a multi-use list, ceases to recognise a supplier as qualified, or removes a supplier from a multi-use list, the entity shall promptly inform the supplier and on request of the supplier, promptly provide the supplier with a written explanation of the reason for its decision.
Article 14.14. 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 the tender of a supplier is received after the time specified for receiving tenders, the procuring entity shall not penalise that supplier if the delay is due solely to the mishandling on the part of the procuring entity.
3. 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
4. A procuring entity shall require that, to be considered for an award, a tender be submitted in writing and shall, at the time of opening:
(a) comply with the essential requirements set out in the notice and tender documentation; and
(b) be submitted by a supplier who satisfies the conditions for participation.
5. Unless a procuring entity determines that it is not in the public interest to award a contract, it shall award the contract to the supplier that the procuring entity has determined to be fully capable of fulfilling the terms of the contract and that, whose tender is consider the most advantageous based solely on the evaluation criteria specified in the notice and tender documentation, or where the price is the sole criterion, the lowest price.
6. 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.
7. If a procuring entity receives a tender with a price that is abnormally lower than the prices in other tenders submitted, it may verify or obtain assurance that the supplier satisfies the conditions for participation and is capable of fulfilling the terms of the contract at that price.
Article 14.15. Transparency and Post-Award Information
Information Provided to Suppliers
1. A procuring entity shall promptly publish or inform suppliers that have submitted a tender of the contract award decision and, on the request of a supplier, shall do so in writing. Subject to Article 14.20, on request, a procuring entity shall provide an unsuccessful supplier with the reasons why the entity did not select that supplier's tender and the relative advantages of the successful supplier's tender.
Publication of Award Information
2. A procuring entity shall, after the award of a contract for a covered procurement, publish in the appropriate paper or an electronic means listed in Section I of a Party's Schedule to Annex 14- A, a notice containing at least the following information:
(a) the name and address of the procuring entity;
(b) adescription of the goods or services procured;
(c) the date of award or, if the procuring entity has already informed suppliers of the date of the award under paragraph 1, the contract date;
(d) the name of the successful supplier;
(e) the value of the contract awarded; and
(f) the procurement method used and, if a procedure was used pursuant to Article 14.9, a brief description of the circumstances justifying the use of that procedure. Maintenance of Records
3. Aprocuring entity shall maintain the documentation, records and reports relating to tendering procedures and contract awards covered under this Chapter, including the records and reports provided for in Article 14.9, for at least three years after the award of a contract.
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 Procedures
1. Each Party shall provide a timely, effective, transparent and non-discriminatory administrative or judicial review procedure through which a supplier may challenge:
(a) a breach of this Chapter; or
(b) when the supplier does not have a right to challenge directly a breach of this Chapter under the laws and regulations of a Party, a failure to comply with a Party's measures implementing this Chapter,
arising 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. In the event of a complaint by a supplier, arising in the context of covered procurement in which the supplier has, or has had, an interest, that there has been a breach or a failure as referred to in paragraph 1, the Party of the procuring entity conducting the procurement shall encourage the procuring entity and the supplier to seek resolution of the complaint through consultations. The procuring entity shall accord impartial and timely consideration to any such complaint in a manner that is not prejudicial to the supplier's participation in ongoing or future procurement or its right to seek corrective measures under the administrative or judicial review procedure.
3. Each supplier shall be allowed a sufficient period of time to prepare and submit a challenge, 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.
4. Each Party shall establish or designate at least one impartial administrative or judicial authority that is independent of its procuring entities to receive and review a challenge by a supplier arising in the context of a covered procurement.
5. When a body other than an authority referred to in paragraph 4 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.
6. Each Party shall ensure that, if a review body that is not a court, the review body shall have its decision 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 ("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) the review body shall make its decisions or recommendations in a timely fashion, in writing, and shall include an explanation of the basis for each decision or recommendation.
7. Each Party shall adopt or maintain procedures that provide for:
(a) prompt 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) where a review body has determined that there has been a breach or a failure as referred to in paragraph 1, corrective action or compensation for the loss or damages suffered, which may be limited to either the costs for the preparation of the tender or the costs relating to the challenge, or both.
Article 14.18. Use of Electronic Means
1. The Parties shall seek to provide information related to future opportunities on government procurement through electronic means.
2. The Parties shall encourage, to the extent possible, the use of electronic means for the publication of procurement information, notices and tender documentation and for the receipt of tenders.
3. When conducting covered procurement by electronic means, each Party shall:
(a) ensure that the procurement is conducted using information technology systems and software, including those related to authentication and encryption of information, that are generally available and interoperable with other generally available information technology systems and software; and
(b) establish and maintain mechanisms that ensure the integrity of information provided by suppliers, including requests for participation and tenders.
Article 14.19. Modifications and Rectifications
1. A Party shall notify any proposed modification or rectification to its Schedule to Annex 14- A by circulating a notice in writing to the other Party through the Other Issues Committee established under Article 22.5(c) (Establishment of Cross-Cutting Committees). (1) 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 or rectification. 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 or rectification concerns one of the following:
(a) a procuring 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 that Party's 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 that Party's Schedule to Annex 14-A; or
(iv) changes in website references;
and no Party objects under paragraph 3 on the basis that the proposed modification or rectification does not concern subparagraph (a) or (b).
3. Any Party whose rights under this Chapter may be affected by a proposed modification or rectification that is notified under paragraph 1 shall notify the other Party of any objection to the proposed modification or rectification within 30 days of the date of circulation of the notice.
4. If a Party objects to a proposed modification or rectification, including a modification or rectification regarding a procuring entity on the basis that government control or influence over the entity's covered procurement has been effectively eliminated, that 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 or rectification, including the procuring entity's continued coverage under this Chapter. The modifying Party and the objecting Party shall make every attempt to resolve the objection through consultations.
5. If the modifying Party and the objecting Party resolve the objection through consultations, the modifying Party shall notify the other Party of the resolution.
6. The Commission shall modify Annex 14-A to reflect any agreed modification.
Article 14.20. Disclosure of Information
Provision of Information to Parties
1. Upon request of the other Party, a Party shall promptly provide any information necessary to determine whether a procurement was conducted fairly, impartially and in accordance with this Chapter, including 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 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, to disclose confidential information if that disclosure would impede law enforcement, might prejudice fair competition between suppliers, would prejudice the legitimate commercial interests of particular persons, including the protection of intellectual property; or would otherwise be contrary to the public interest.
Article 14.21. Exceptions
1. Nothing in this Chapter shall be construed to prevent a Party from taking any action or not disclosing any information that it considers necessary for the protection of its essential security interests related to the procurement of arms, ammunition, or war materials, or to procurement indispensable for national security or for national defence purposes.
2. Subject to the requirement that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between the Parties where the same conditions prevail, or a disguised restriction on international trade between the Parties, nothing in this Chapter shall be construed to prevent a Party from adopting or maintaining measures:
(a) necessary to protect public morals, order or safety;
(b) necessary to protect human, animal or plant life or health, including environmental measures;
(c) necessary to protect intellectual property; or (d) relating to the goods or services of persons with disabilities, of philanthropic or not-for-profit institutions, or of prison labour.
Article 14.22. 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 importance of business alliances between suppliers of each Party, and in particular between SMEs, including the joint participation in tendering procedures.
3. If a Party maintains measures that provide preferential treatment to SMEs, the Party shall ensure that the measures, including the criteria for eligibility, are transparent.
4. The Parties may:
(a) provide information related to their measures used in order to contribute, promote, encourage or facilitate SMEs participation in government procurement; and
(b) cooperate in the elaboration of mechanisms in order to provide information to the SMEs of the means for participating in covered procurement under this Chapter.
5. To facilitate participation of SMEs in covered procurement, each Party may, if appropriate: