(D) hiring of public employees and measures related to employment;
(E) contracting by a State entity or enterprise to another entity of the same Party;
(F) the contracting:
(i) for the specific purpose of providing international assistance, including development assistance; or
(ii) in accordance with a particular procedure or condition of an international agreement relating to:
(A) the establishment of troops; or
(B) the joint execution of a project by the contracting parties to that agreement;
(G) contracting financed by donations, loans or other forms of international assistance, when the applicable procedure or conditions are incompatible with the provisions of this Chapter; and
(H) contracting for the specific purpose of providing assistance abroad.
Assessment
4. When estimating the value of a procurement for the purpose of determining whether it is a covered procurement, a procuring entity:
(A) should not divide public procurement into separate public procurement, or use a particular method to estimate the value of public procurement for the purpose of evading the application of this Chapter;
(B) shall take into account all forms of remuneration, including premiums, fees, fees, commissions, interest, other revenue streams that may be stipulated in public procurement, and where public procurement stipulates the possibility of option clauses, Total maximum value of public procurement, including optional purchases; and
(C) shall, where public procurement is to be carried out in multiple parts and results in the award of contracts at the same time or in a given period to one or more suppliers, base its calculation on the total maximum value of public procurement During the whole period of its validity.
5. When the total maximum value of a public procurement throughout its entire duration is unknown, public procurement will be covered by this Chapter.
6. No contracting entity may prepare, design, structure or divide public procurement, in order to evade the obligations of this Chapter.
Article 4.3. General Exceptions
1. Nothing in this Chapter shall be construed to prevent a Party from taking any action or refraining from disclosing any information deemed necessary for the protection of its essential security interests, such as the acquisition of arms, ammunition or War material, or any other contracting indispensable for national defense or national security.
2. Provided that the following measures are not applied in a discriminatory manner or constitute a disguised restriction on trade, no provision of this Chapter shall be construed to prevent a Party from adopting or maintaining measures:
(A) necessary to protect public morals, order or security;
(B) necessary to protect human, animal or plant life or health, including the respective environmental measures;
(C) necessary to protect intellectual property; or
(D) related to the goods or services of persons with disabilities, charities or prison labor.
Article 4.4. General Principles
1. Nothing in this Chapter shall prevent a Party from developing new procurement policies, procedures or contractual arrangements, provided they are compatible with this Chapter.
National Treatment and Non-Discrimination
2. With respect to any measure covered by this Chapter, each Party shall immediately and unconditionally grant the goods and services of the other Party and the suppliers of the other Party offering such goods or services, a treatment no less
Favorable treatment accorded by that Party to its own goods, services and suppliers offering such goods and services.
3. With respect to any measure covered by this Chapter, a Party, including its contracting entities, may not:
(A) treat a locally established supplier less favorably than another locally established supplier, by reason of its degree of affiliation or foreign ownership; or
(B) discriminate against a locally established supplier on the basis that the goods or services offered by that supplier for procurement are goods or services of the other Party.
Measures not specific to public procurement
4. Paragraphs 2 and 3 shall not apply to customs duties and charges of any kind imposed on or related to importation; To the method of collection of said rights and charges; Other import regulations or formalities; Or to measures affecting trade in services, other than measures governing covered public procurement.
Use of Electronic Media
5. Where covered public procurement is carried out by electronic means, a contracting entity shall:
(A) to ensure that public procurement is carried out using information technology systems and software, including those related to authentication and cryptographic coding of information, which are generally accessible and compatible with other information technology systems And generally accessible computer programs; and
(B) maintain mechanisms to ensure the integrity of requests for participation and offers, as well as determining the timing of receipt of such documents and preventing inappropriate access.
Execution of the Contract
6. A contracting entity shall carry out covered procurement in a transparent and impartial manner, in a manner consistent with this Chapter, avoid conflicts of interest and prevent corrupt practices.
Rules of Origin
7. Each Party shall apply to covered public procurement of goods the rules of origin which it applies in the normal course of trade in such goods. For the sake of clarity, it is understood as rules of origin which apply in the normal course of trade non-preferential rules of origin, in accordance with Article 1.2 of the WTO Agreement on Rules of Origin.
Denial of Benefits
8. A Party may deny benefits under this Agreement, upon notification and consultation, to service providers of the other Party if the service provider:
(A) is a person who does not conduct substantive business operations in the territory of the other Party; or
(B) supplies the service from or in the territory of a non-Party.
9. For the sake of clarity, "substantive business operations" means that the legal entity meets the following criteria:
(A) pays taxes on profits in one of the Parties (or is exempt by law from the payment of such taxes); and
(B) owns or rents commercial premises and employs personnel commensurate with the scope and scale of its business in one of the Parties.
Article 4.5. Publication of Information on Government Procurement
1. Each Party shall publish in a timely manner its generally applicable measures specifically governing public procurement covered by this Chapter, as well as any modification to such measures in the same manner as the original publication on an electronic medium listed in Annex III (Coverage).
2. Each Party shall, upon request, furnish to the other Party an explanation of such information.
Article 4.6. Electronic Auctions
1. Where a procuring entity intends to conduct a covered procurement by means of an electronic auction, the procuring entity shall provide each participant, before the electronic auction begins, with the following information:
(A) the automatic assessment method, which is based on the evaluation criteria established in the contracting documents and which will be used in the automatic classification or reclassification during the auction;
(B) the results of any initial evaluation of the elements of its offer when the contract is awarded on the basis of the most advantageous tender; and
(C) any other relevant information on the conduct of the auction.
Article 4.7. Publication of Notices
1. For each procurement covered by this Chapter, a procuring entity shall publish in advance a notice inviting interested suppliers to submit tenders for such procurement, or, where applicable, requests to participate in procurement, with the exception of Provided in Article 4.12. Notices shall be electronically accessible at no cost for the entire period set for the submission of bids for the corresponding procurement.
2. Each public procurement notice shall include at least the following information:
(A) a description of public procurement;
(B) the contracting method to be used;
(C) any condition that suppliers must satisfy in public procurement;
(D) the name of the entity issuing the notice;
(E) the address and / or contact point where suppliers can obtain all relevant documentation relating to public procurement;
(F) the address and final date for the submission of bids;
(G) the dates of delivery of the goods or services to be contracted or the duration of the contract, unless this information is included in the contracting documents; and
(H) an indication that public procurement is covered by this Chapter.
Notice of Contracting Plans
3. Each Party shall publish, on an electronic medium listed in Annex III (Coverage), as soon as possible in each fiscal year, a notice regarding its future contracting plans. Such notices shall include the object or category of goods and services to be contracted and the estimated period in which the procurement will take place.
Article 4.8. Terms of Participation
1. Where a Party requires suppliers to comply with registration, qualification or other requirements or conditions of participation in a procurement, the procuring entity shall publish a notice inviting suppliers to apply for such participation. The contracting entity shall publish the notice sufficiently in advance to allow sufficient time for the interested parties to prepare and submit their applications and for the contracting entity to evaluate and make its determinations on the basis of such requests.
2. When establishing the conditions for participation, a contracting entity:
(A) shall limit these conditions to those which are essential to ensure that the supplier has the legal and financial capacities and the commercial and technical skills to comply with the requirements and technical specifications of public procurement on the basis of commercial activities Of the supplier made both inside and outside the territory of the Party of the contracting entity;
(B) shall base its decision only on such conditions as the contracting entity has specified in advance in the procurement notices or documents;
(C) shall not impose as a condition that, for a supplier to participate in a procurement or a contract to be awarded, that the supplier has previously been awarded one or more contracts by a contracting entity of the Party concerned;
(D) may require relevant prior experience when essential to meet procurement requirements; Y
(E) shall allow all national suppliers and suppliers of the other Party who have fulfilled the conditions of participation to participate in public procurement.
3. Where there is evidence to support it, a Party, including its contracting entities, may exclude a supplier from public procurement on grounds such as:
(A) bankruptcy;
(B) false statements;
(C) significant or persistent deficiencies in the performance of any
Substantive requirement or obligation arising from one or more previous contracts;
(D) Final sentences for serious offenses or other serious offenses;
(E) lack of professional ethics or acts or omissions that call into question the commercial integrity of the supplier; Or not paying taxes
4. Contracting entities shall not adopt or apply a registration system or rating procedure with the purpose or effect of creating unnecessary obstacles to the participation of suppliers of the other Party in their respective public procurement.
5. The process of, and the time required for, the registration and qualification of the suppliers shall not be used to exclude suppliers of the other Party from being considered for a particular procurement.
6. Entities may establish publicly available permanent lists of qualified suppliers to participate in public procurement. Where an entity requires suppliers to qualify on that list as a condition of participation in a procurement, and a supplier who has not yet qualified requests to be included in the list, the Parties shall ensure that the procedure for entry on the list is initiated without delay And shall allow the supplier to participate in public procurement provided that the qualification procedures can be completed within the time limit set for the submission of tenders.
7. A procuring entity shall promptly inform any supplier it has applied for qualification regarding its decision with respect to that request. Where a contracting entity rejects a qualification request or fails to recognize a supplier as one that fulfills the conditions for participation, the contracting entity shall inform the supplier and, on request, without delay, in writing, of the reasons for the request. Decision of the entity.
Registration and Qualification Process Multi-purpose List
8. Parties whose entities use lists or permanent records of qualified suppliers shall ensure that:
(A) suppliers of the other Party may request their registration, qualification or rating under the same conditions as national suppliers;
(B) all suppliers who so request are included in such lists or records without undue delay; Y
(C) all suppliers included in the lists or records are notified of the temporary suspension or cancellation of those lists or records or of their removal from them.
9. When the inclusion in a list or register of suppliers is required, the objective should be no other than the accreditation of the suitability to contract with the State, without hindering the entry of interested parties of the other Party.
10. A procuring entity may establish a multi-use list whenever the entity publishes annually or otherwise continuously makes available in electronic form a notice inviting interested suppliers to request their inclusion in the list.
11. The notice must include:
(A) a description of the goods or services that may be contracted through the list;
(B) the conditions of participation that suppliers must satisfy and the methods that the procuring entity will use to verify that suppliers have met such conditions;
(C) the name and address of the contracting entity and any other information necessary to contact the entity and obtain all relevant documents related to the list;
(D) any deadline for the submission of requests for inclusion on the list; and
(E) an indication that the list may be used for public procurement covered by this Chapter.
12. A contracting entity maintaining a multi-use list shall: (a) include in the list, within a reasonably short period of time following the submission of an application, all suppliers who have met the conditions for participation; And (b) when the entity uses the multi-use list in any future procurement, invite all suppliers on the list to submit bids.
Article 4.9. Contracting Documents
1. A procuring entity shall provide, in a timely manner, to suppliers interested in participating in procurement, procurement documents containing all the information necessary to enable them to prepare and submit appropriate tenders. These documents will be published in an electronic medium listed in Annex III (Coverage).
2. Unless the procurement notice has included this information, the procurement documents shall include at least a complete description of the following:
(A) The nature and quantity of goods or services to be contracted, or, if the quantity is not known, the estimated amount and any compliance requirements, including technical specifications, conformity assessment certificates, plans, designs or instruction manuals;
(B) the conditions of participation of suppliers, including information and documents that suppliers must submit in relation to those conditions;
(C) the evaluation criteria to be considered in the award of a contract and, unless the price is the sole criterion, the relative importance of such criteria;
(D) where an entity conducts an electronic auction, the rules applicable to the auction, including the identification of the elements of the bid related to the evaluation criteria;
(E) the date, time and place of the opening of tenders;
(F) any other term or condition, such as terms of payment and the manner in which tenders will be submitted; and
(G) the date or period for the delivery of the goods or for the provision of the services or the duration of the contract.
3. Where an entity does not publish all procurement documents by electronic means, it shall ensure that they are available to any supplier who requests them.
4. Where, in the course of a covered procurement contract, a contracting entity changes the criteria or technical requirements set out in a procurement notice or document provided to the participating suppliers, or amends a procurement notice or document, written:
(A) all suppliers who are participating at the time of modification of the information, if the identification of such suppliers is known, and in all other cases, in the same way as the original information was transmitted; and
(B) in sufficient time to allow suppliers to modify and resubmit corrected bids, as appropriate.
Technical specifications
5. A contracting entity shall not prepare, adopt or apply any technical specification or require any conformity assessment procedure with the purpose or effect of creating unnecessary obstacles to trade between the Parties.
6. In establishing any technical specification for the goods or services to be contracted by a contracting entity, the technical specification shall, where appropriate:
(A) be specified in terms of performance and functional requirements, rather than descriptive or design features; and
(B) be based on international technical standards, where applicable, or otherwise, in national technical regulations, recognized national technical standards, or in building codes.
7. A contracting entity shall not establish 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 Describe the requirements of public procurement, and provided that, in such cases, expressions such as "or equivalent" are also included in the procurement documents.
8. A procuring entity shall not solicit or accept, in a manner that would have the effect of preventing competition, advice that could be used to prepare or adopt any technical specification for specific procurement from any person who may have a commercial interest therein. Public procurement.
9. 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 to protect the environment.
Article 4.10. Deadlines
1. A procuring entity shall provide sufficient time for suppliers to submit applications for participation in a procurement and to prepare and submit tenders, taking into account the nature and complexity of procurement.
2. Except as provided in paragraphs 3, 4 and 5, a procuring entity shall provide that the deadline for the submission of tenders shall not be less than 40 days:
(A) from the date of publication of the notice of future engagement; or
(B) where the contracting entity makes use of a selective tender, from the date on which the entity invites suppliers to submit tenders.
3. A contracting entity may reduce the deadline for submitting bids up to 10 days when the entity publishes a notice of future engagement in accordance with Article 4.7.3 (Publication of Notices) in an electronic medium.
4. A procuring entity may set a time limit of less than 40 days, or 30 days where an entity has complied with paragraph 3, provided that the time limit given to suppliers is sufficient for the procuring entity to prepare and submit its offers, and In no case may be less than 10 days before the deadline for the submission of tenders when:
(A) the contracting entity has issued a separate notice, including the public procurement notice planned under Article 4.7.3 (Publication of Notices) at least 40 days and not more than 12 months in advance, and such separate notice Contain a description of government procurement, where appropriate, applications for participation in a procurement, and the address where procurement documentation can be obtained; or
(B) the procuring entity purchases commercial goods or services; or
(C) an unforeseen emergency situation duly justified by the contracting entity, render impracticable compliance with the time limit stipulated in paragraph 2, or where applicable, paragraph 3.
5. A procuring entity shall require all participating suppliers to submit their bids in accordance with a common deadline. For greater certainty, this requirement also applies when:
(A) as a result of the need to amend the information provided to suppliers during the procurement process, the contracting entity extends the deadline for qualification or tendering procedures; or
(B) in the case of negotiations, these negotiations will be concluded and the bidders may submit new bids.
Article 4.11. Negotiations
1. A Party may provide that its contracting entities conduct negotiations:
(A) in the context of a public procurement where such intention has been indicated in the notice of public procurement; and
(B) when it appears from the evaluation made that no offer is obviously the most advantageous in terms of the specific evaluation criteria set out in the notices or in recruitment documents.
2. A contracting entity shall ensure that any elimination of suppliers participating in the negotiations is carried out in accordance with the evaluation criteria set out in the procurement notices and documents.
Article 4.12. Procurement Procedures Open Tender
1. Contracting entities shall award contracts through open tendering procedures, in the course of which any interested supplier may submit a tender.
Selective Bidding
2. Where the legislation of a Party allows for selective tendering, an entity shall, for each procurement:
(A) publish a notice inviting suppliers to submit requests for participation in procurement sufficiently in advance for interested suppliers to prepare and submit applications and for the entity to evaluate and make its determination based on such requests; and
(B) allow all domestic suppliers and all suppliers of the other Party that the entity has determined that they comply with the terms of participation to submit an offer, unless the entity has established in the notice or in the procurement documents publicly any condition that impedes the participation of all qualified suppliers, provided it is consistent with the provisions of this Chapter, and the criteria for that limitation.
3. Entities holding multi-use lists of qualified suppliers may select suppliers from such lists, who will be invited to submit tenders. Any selection should offer fair opportunities to suppliers included in such lists
Other Procurement Procedures