4. The Parties recognise the importance of transparent measures regarding government procurement, of carrying out procurements in a transparent and impartial manner and of avoiding conflicts of interest and corrupt practices, in accordance with applicable international instruments, such as the United Nations Convention Against Corruption.
Article 10.3. Scope
Application of Chapter
1. This Chapter applies to any measure regarding covered procurement.
2. The provisions of this Chapter do not affect the rights and obligations provided for in Chapter 2 (Trade in Goods) and Chapter 8 (Trade in Services).
3. For the purposes of this Chapter, except when done with a view to commercial sale or resale or for use in the production or supply of goods or services for commercial sale or resale, covered procurement means government procurement:
(a) of a good, service or any combination thereof as specified in each Party's Schedule in Annex 10A (for India) or Annex 10B (for the UAE);
(b) by any contractual means, including: purchase; rental or lease, with or without an option to buy;
(c) for which the value, as estimated in accordance with paragraphs 7 and 8, equals or exceeds the relevant threshold specified in a Party's Schedule under Annex 10A (for India) or Annex 10B (for the UAE), at the time of publication of a notice of intended procurement;
(d) by a procuring entity; and
(e) that is not otherwise excluded from coverage under this Agreement.
Activities Not Covered
4. Unless otherwise provided in a Party's Schedule under Annex 10A (for India) or Annex 10B (for the UAE), this Chapter does not apply to:
(a) the acquisition or renta! of land, existing buildings or other immovable property or the rights thereon;
(b) non-contractual agreements or any form of assistance that a Party, including its procuring entities, provides, including cooperative agreements, grants, loans, equity infusions, guarantees, subsidies, fiscal incentives, and sponsorship arrangements;
(c) the procurement or acquisition of: fiscal agency or depository services; liquidation and management services for regulated financial institutions; or services related to the sale, redemption and distribution of public debt, including loans and government bonds, notes and other securities;
(d) public employment contracts; or
(e) procurement:
(i) conducted for the specific purpose of providing international assistance, including development aid;
(ii) funded under the particular procedure or condition of an international organisation, or funded by international grants, loans, or other assistance where the applicable procedure or condition would be inconsistent with this Agreement; or
(iii) conducted under the particular procedure or condition of an international agreement relating to the stationing of troops or relating to the joint implementation by the signatory countries of a project.
Schedules
5. Each Party shall specify the following information in its Schedule under Annex 10A (for India) or Annex 10B (for the UAE):
(a) in Section A, the central government entities for which procurement is covered by this Chapter;
(b) in Section B, the services, other than construction services, covered by this Chapter;
(c) in Section C, the construction services covered by this Chapter;
(d) in Section D, General Notes;
(e) in Section E, Procurement Information.
Compliance
6. Each Party shall ensure that its procuring entities comply with this Chapter in conducting covered procurements. No procuring entity shall prepare or design a procurement, or otherwise structure or divide a procurement into separate procurements in any stage of the procurement, or use a particular method to estimate the value of a procurement, in order to avoid the obligations of this Chapter.
Valuation
7. In estimating the value of a procurement for the purposes of ascertaining whether it is a covered procurement, a procuring entity shall include the estimated maximum total value of the procurement over its entire duration, taking into account:
(a) all forms of remuneration, including any premium, fee, commission, interest or other revenue stream that may be provided for under the contract such as taxes, duties, logistical support, financing cost, staff, remuneration rates;
(b) the value of any option clause; and
(c) any contract awarded at the same time or over a given period to one or more suppliers under the same procurement.
8. If the total estimated maximum value of a procurement over its entire duration is not known, the procurement shall be deemed a covered procurement, unless otherwise excluded under this Agreement.
Article 10.4. Exceptions.
1 . Nothing in this Chapter shall be construed to prevent any Party from taking any action or not disclosing any information which it considers necessary for the protection of its essential security interests relating to the procurement of arms, ammunition or war materials, or to procurement indispensable for national security or for national defence purposes.
2. For the purpose of this Chapter, Article XX of the GATT 1994 and its interpretative note shall apply mutatis mutandis to the procurement of goods, and Article XIV of the GATS including its footnotes shall apply mutatis mutandis to the procurement of services.
3. Additionally, subject to the requirement that the measure is not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between 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, including its procuring entities, from adopting or maintaining a measure relating to the good or service of a person with disabilities, of philanthropic or not-for-profit institutions, or of prison labour.
Article 10.5. General Principles
National Treatment and Non-Discrimination
1. With respect to any measure regarding covered procurement, unless otherwise specified in this Chapter, each Party, including its procuring entities, shall accord immediately and unconditionally to the goods and services of the other Party and to the suppliers of the other Party, treatment no less favourable than the treatment that the Party, including its procuring entities, accords to domestic goods, services, and suppliers.
2. With respect to a measure regarding covered procurement, no Party, including its procuring entities, shall:
(a) treat a locally established supplier less favourably than another locally established supplier on the basis of degree of foreign affiliation to or ownership by a person of the other Party; or
(b) discriminate against a locally established supplier on the basis that the good or service offered by that supplier for a particular procurement is a good or service of the other Party.
3. All purchase orders under contracts awarded for covered procurement shall be subject to paragraphs 1 and 2.
Procurement Methods
4. A procuring entity shall use an open tendering procedure for covered procurement unless Article 10.9 (Qualification of Suppliers) or Article 10.11 (Limited Tendering) applies.
Rules of Origin
5. For the purposes of covered procurement, a Party shall not apply rules of origin to goods or services imported from or supplied from the other Party that are different from the rules of origin the Party agreed to in Chapter 3 (Rules of Origin) of this Agreement. For those goods not incorporated in Chapter 3 (Rules of Origin), the relevant rules of origin in the laws and regulations of the Parties shall apply.
Measures Not Specific to Procurement
6. Paragraphs 1 and 2 shall not apply to customs duties and charges of any kind imposed on or in connection with importation, the method of levying such duties and charges, other import regulations or formalities, and measures affecting trade in services other than measures governing covered procurement.
Use of Electronic Means
7. The Parties shall endeavour, within the context of their commitment, to promote electronic commerce with the view to providing opportunities for e- procurement.
8. When conducting covered procurement by electronic means, a procuring entity shall:
(a) ensure that the procurement is conducted using financial systems, information technology systems, and software, including those related to authentication and encryption of information, that are generally available and interoperable with other generally available financial systems, information technology systems, and software; and
(b) establish and maintain mechanisms that ensure the integrity of information which provide opportunities to suppliers, including requests for participation in tenders.
Article 10.6. Publication of Procurement Information
1. Each Party shall promptly publish any measure of general application relating to covered procurement, and any change or addition to this information.
2. Each Party shall list in Section E of its Schedule under Annex 10A (for India) or Annex 10B (for the UAE) the paper or electronic means through which the Party publishes the information described in paragraph 1 and the notices required by Article 10.7 (Notices of Intended Procurement), paragraph 3 of Article 10.9 (Qualification of Suppliers), and paragraph 3 of Article 10:17 (Transparency and Post-Award Information).
3. Each Party shall, on request, provide an explanation in response to an inquiry relating to the information referred to in paragraph 1.
Article 10.7. Notices of Intended Procurement
1. For each covered procurement, except in the circumstances described in Articie 10.11 (Limited Tendering), a procuring entity shall publish a notice of intended procurement through the appropriate paper or electronic means listed in Annex 10A (for India) or Annex 10B (for the UAE). The notices shall remain readily accessible to the public until at least the expiration of the time period for responding to the notice or the deadline for submission of the tender.
2. The notices shall, if accessible by electronic means, be provided free of charge for central government entities that are covered under Annex 10A (for India) or Annex 10B (for the UAE), through a single point of access or through links in a single electronic portal.
3. Unless otherwise provided in this Chapter, each notice of intended procurement shall include the following information, unless that information is provided in the tender documentation that is made available free of charge to all interested suppliers at the same time as the notice of intended procurement:
(a) the name and address of the procuring entity and other information necessary to contact the procuring entity and obtain all relevant documents relating to the procurement, and the cost and terms of payment to obtain the relevant documents, if any;
(b) a description of the procurement, including, if appropriate, the nature and quantity of the goods or services to be procured and a description of any options, or the estimated quantity if the quantity is not known;
(c) if applicable, the time-frame for delivery of goods or services or the duration of the contract;
(d) if applicable, the address and any final date for the submission of requests for participation in the procurement;
(e) the address and the final date for the submission of tenders;
(f) the language or languages in which tenders or requests for participation may be submitted, if other than an official language of the Party of the procuring entity;
(g) a list and a brief description of any conditions for participation of suppliers, that may include any related requirements for specific documents or certifications that suppliers must provide;
(h) if, pursuant to Article 10.9 (Qualification of Suppliers), a procuring entity intends to select a limited number of qualified suppliers to be invited to tender, the criteria that will be used to select them and, if applicable, any limitation on the number of suppliers that will be permitted to tender;
(i) if, pursuant to Article 10.10 (Electronic Reverse Auction), a procuring entity intends to use an electronic reverse auction, all conditions, including the date and time of the auction, rules for participation, valid bid increments, how to bid, and whether the auction is divided into successive phases; technical information needed to particinate in the auction; the relevant information concerning the electronic equipment used; and the arrangements and technical specifications for connection; and
(j) an indication that the procurement is covered by this Chapter.
4. For greater certainty, paragraph 3 does not preclude a Party from charging a fee for tender documentation if the notice of intended procurement includes all of the information set out in paragraph 3.
Notice of Planned Procurement
5. Each Party shall encourage its procuring entities to publish, as early as possible in the fiscal year, information regarding the entities' indicative procurement plans in the e-procurement portal.
Article 10.8. 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. A procuring entity shall ensure that all conditions of participation and exclusion of suppliers are present in the tender documentation.
3. 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.
4. 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;
(b) base its evaluation solely on the conditions that the procuring entity has specified in advance in notices or tender documentation.
5. If there is supporting evidence, 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 10.9. 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 and documentation.
2. No Party, including its procuring entities, shall 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.
Selective Tendering
3. If a procuring entity intends to use selective tendering, the procuring entity shall:
(a) publish a notice of intended procurement that invites qualified suppliers to submit a request for participation in a covered procurement; and
(b) include in the notice of intended procurement the information specified in subparagraphs 3(a), (b), (d), (g), (h), (i) and (j) of Article 10.7 (Notices of Intended Procurement).
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 subparagraphs 3(c), (e), and (f) of Article 10.7 (Notices of Intended Procurement) to the qualified suppliers that it notifies as specified in Article 10.15 (Time Periods); and
(c) allow all qualified suppliers to submit a tender, unless the procuring entity stated 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 subparagraph 4(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 in 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 in the fist 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 ail 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 fist;
(e) the deadline for submission of applications for inclusion in 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 paragraph 2 of Article 10.6 (Publication of Procurement Information).
7. A Party, including its procuring entities, that establishes or maintains a multi- use list, shall include in 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 in 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 10.15 (Time Periods), a procuring entity shall examine tne request. The procuring eritity shali not exciude 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 shal! promptly inform any supplier that submits a request for participation in a procurement or application for inclusion in 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 in 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 10.10. Electronic Reverse Auction
1. A procuring entity may use electronic reverse auctions only under the following circumstances:
(a) it is feasible for the procuring entity to formulate a detailed description of the subject matter of the procurement;
(b) there is a competitive market of bidders anticipated to be qualified to participate in the electronic reverse auction, so that effective competition is ensured; and
(c) the sole criterion to be used by the procuring entity in determining the successful bid is price.
2. If a procuring entity intends to use electronic reverse auctions, the procuring entity shall:
(a) solicit bids through an invitation to the electronic reverse auction to be published or communicated; and
(b) include in the invitation details relating to access to and registration for the auction, opening and closing of the auction, and norms for conduct of the auction.
Article 10.11. Limited Tendering
1. Subject to paragraph 2 and provided that it does not use this provision to protect domestic suppliers, or in a manner that discriminates against suppliers of the other Party, a procuring entity may use limited tendering.
2. If a procuring entity uses limited tendering, it may choose, according to the nature of the procurement, not ie apply Article 10.7 (Notices of intended Procurement), Article 10.8 (Conditions for Participation), Article 10.9 (Qualification of Suppliers), Article 10.12 (Negotiations), Article 10.13 (Technical Specifications), Article 10.14 (Tender Documentation), Article 10.15 (Time Periods), or Article 10.16 (Treatment of Tenders and Awarding of Contracts). A procuring entity may use limited tendering only under the following circumstances:
(a) if, in response to a prior notice, invitation to participate, or invitation to tender:
(i) no tenders were submitted or no suppliers requested participation,
(ii) no tenders were submitted that conform to the essential requirements in the tender documentation,
(iii) no suppliers satisfied the conditions for participation, or
(iv) the tenders submitted were collusive,
provided that the procuring entity does not substantially modify the essential requirements set out in the notices or tender documentation;
(b) if the good or service can be supplied only by particular supplier(s) and no reasonable alternative or substitute good or service exists for any of the following reasons:
(i) the requirement is for a work of art,
(ii) the protection of patents, copyrights, or other exclusive rights, or
(iii) due to an absence of competition for technical reasons;
(c) for additional deliveries by the original supplier or its authorised agents, of goods or services that were not included in the initial procurement if a change of supplier for such additional goods or services:
(i) cannot be made for technical reasons such as requirements of interchangeability or interoperability with existing equipment, software, services, or installations procured under the initial procurement, or due to conditions under original supplier warranties, and
(ii) would cause significant inconvenience or substantial duplication of costs for the procuring entity;
(d) if a procuring entity procures a prototype or a first good or service that is intended for limited trial or that is developed at its request in the course of, and for, a particular contract for research, experiment, study, or original development. Original development of a prototype or a first good or service may include limited production or supply in order to incorporate the results of field testing and to demonstrate that the prototype or the first good or service is suitable for production or supply in quantity to acceptable quality standards, but does not include quantity production or supply to establish commercial viability or to recover research and development costs. Subsequent procurements of these newly developed goods or services, however, shall be subject to this Chapter;
(e) if additional services that were not included in the initial contract conducted through methods other than limited tendering, but that were within the objectives of the original tender documentation have, due to unforeseeable circumstances, become necessary to complete the construction services described therein. However, the total value of contracts awarded for additional services may not exceed fifty percent (50%) of the value of the initial contract, except in rare situations;
(f) for new services consisting of the repetition of similar services which conform to a basic project for which an initial contract was awarded and for which the entity has indicated in the notice of intended procurement concerning the initial service that limited tendering procedures might be used in awarding contracts for such new services;
(g) for purchases made under exceptionally advantageous conditions that only arise in the very short term, such as from unusual disposals, liquidation, bankruptcy, or receivership, but not for routine purchases from regular suppliers;
(h) if a contract is awarded to the winner of a design contest, provided that: