4. Whenever this provision is not used to prevent competition between suppliers or in a manner that discriminates against suppliers of the other Party, or protects domestic suppliers, a contracting entity may use other procurement procedures only in Following circumstances:
(A) provided that the requirements of the procurement documents are not substantially modified, where:
(i) no offer has been submitted or no supplier has requested to participate;
(ii) no offer meeting the essential requirements of the bidding documents was submitted or the bids submitted were inadmissible;
(iii) no supplier complied with the terms of participation; or
(iv) there has been collusion in the submission of bids;
(B) where the goods or services may be supplied only by a particular supplier and there is no reasonable alternative or substitute service for any of the following reasons:
(i) the requirement is for the performance or restoration of a work of art;
(ii) the protection of patents, copyrights or other exclusive intellectual property rights; or
(iii) due to lack of competition for technical reasons; As in the case of contracting services intuitu personae;
(C) for deliveries or additional services from the initial supplier of goods or services that were not included in the initial public procurement, where the change of supplier of such additional goods or services:
(i) can not be made for economic or technical reasons such as requirements for interchangeability or compatibility with existing equipment, software, services or facilities subject to initial contracting; Y
(ii) would cause significant drawbacks or substantial duplication of costs for the contracting entity,
In the case of construction services, the total value of contracts awarded for such additional services shall not exceed 50 per cent of the initial contract amount, provided that such services have been included in the objectives contained in the contracting documents and Have become necessary to complete the work due to unforeseen reasons;
(D) to the extent strictly necessary, where for reasons of extreme urgency occasioned by unforeseen events for the contracting entity, goods or services can not be obtained on time through open tendering, or as appropriate, selective tendering, and Use of such procedures could result in serious prejudice to the contracting entity;
(E) for purchases of goods made in a commodity or commodity market;
(F) where a procuring entity acquires a first good in a limited quantity, or a prototype, or contracts a service that is developed upon request in the course of, and for, a particular original research, experiment, study or development contract, including Inputs for this; 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 consistent with the principles of this Chapter, in particular with respect to the publication of the notice of public procurement; and
(ii) the participants are qualified or evaluated by a jury or independent body with a view to the conclusion of a design contract awarded to a winner.
(H) in the contracting of work, service or supply, as a consequence of contractual resolution, provided that the order of priority of the original tender is respected;
5. A procuring entity shall maintain records or prepare a written report for each contract awarded in accordance with paragraph 2, consistent with Article 4.14.2 (Transparency of Public Procurement Information). Where a Party prepares written reports in accordance with this paragraph, they shall include the name of the contracting entity, the value and nature of the goods or services contracted and a justification indicating the circumstances and conditions described in paragraph 2 that justify the use of others Recruitment procedures. When a Party maintains records, the Parties shall indicate the circumstances and conditions described in paragraph 2 that justify the use of other procurement procedures.
Article 4.13. Opening of Bids and Award of Contracts
1. A procuring entity shall receive and open all bids under procedures that guarantee equality and impartiality between the suppliers of the Parties in the public procurement process and shall treat bids confidentially, at least until the bids are opened.
2. Where a procuring entity provides suppliers with an opportunity to rectify any inadvertent error of form between the period of opening of tenders and the award of the contract, the procuring entity shall provide the same opportunity to all participating suppliers.
Contract Awarding
3. A contracting entity shall require that, for the purpose of being considered for an award, the tender:
(A) is presented in writing, by a supplier who meets all the terms of participation; and
(B) at the time of opening, shall be in accordance with the essential requirements specified in the procurement notices and documents.
4. Unless a contracting entity determines that the award of a contract is contrary to the public interest, the procuring entity shall award the contract
To the supplier that the contracting entity has determined fulfills the conditions of participation and is fully capable of complying with the contract and whose offer is considered the most advantageous based solely on the requirements and evaluation criteria specified in the notices and documents of Contracting, or when the price is the only evaluation criterion, the lowest price.
5. Where 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 it satisfies the conditions for participation and if it has the capacity to comply with contract.
6. A contracting entity may not cancel a procurement, or terminate or modify a contract that has been awarded in order to evade the obligations of this Chapter.
Article 4.14. Transparency of Public Procurement Information Information to Be Provided to Suppliers
1. A procuring entity shall promptly inform the participating suppliers of its decision on the award of a contract and shall, upon request, do so in writing. Subject to Article 4.7 (Publication of Notices), a procuring entity shall, upon request, provide the supplier whose offer has not been chosen, the reasons for that decision and the relative advantages of the winning bid.
Publication of Award Information
2. As soon as practicable after an award, a contracting entity shall publish in an electronic medium listed in Annex III (Coverage) a notice containing at least the following information on the award of the contract:
(A) the name of the contracting entity;
(B) a description of the goods or services contracted;
(C) the date of award;
(D) the name of the supplier to whom the contract was awarded; and
(E) the value of the contract.
Record Keeping
3. A procuring entity shall maintain reports or records of public procurement procedures related to covered public procurement, including the reports referred to in Article 4.12 (Procurement Procedures) and shall maintain
Such reports or records for a period of at least five years after the date of award of a contract.
Article 4.15. Disclosure of Information
1. At the request of a Party, the other Party shall provide in a timely manner the information necessary to determine whether a procurement has been conducted fairly, impartially and in accordance with this Chapter. This information will include information about the characteristics and relative advantages of the winning bid. In cases where disclosure of information may prejudice competition in future bids, the Party receiving the information shall not disclose it to any supplier, except if the other Party agrees.
No Disclosure of information
2. No Party, including its contracting entities, authorities or review bodies, may disclose information that the person providing it has designated as confidential, in accordance with its national law, unless such person is authorized. Notwithstanding any other provision of this Chapter, no Party, including its contracting entities, shall provide to any particular supplier any particular information that may prejudice fair competition between suppliers.
3. No provision in this Chapter shall be construed to require a Party, including its contracting entities, reviewing authorities to disclose confidential information under this Chapter, if such disclosure would:
(A) prevent compliance with the law;
(B) impairing fair competition between suppliers;
(C) prejudice legitimate private commercial interests, including protection of intellectual property; or
(D) otherwise be contrary to the public interest.
Article 4.16. Challenging Procedures
1. Each Party shall ensure that its contracting entities consider, in an impartial and timely manner, any claim by their suppliers with respect to an allegation of non-compliance with this Chapter arising in the context of covered public procurement in which they have or have had an interest. Each Party shall encourage its suppliers to seek clarification from their contracting entities through consultations with a view to facilitating the resolution of any such claim.
2. Each Party shall provide for a timely, effective, transparent and non-discriminatory administrative or judicial review procedure, in accordance with
With the principle of due process, through which a supplier may file an appeal alleging a breach of this Chapter that arises in the context of covered public contracts in which the supplier has or has had interest.
3. Each Party shall establish or maintain at least one impartial administrative or judicial authority, independent of its contracting entities, to receive and review a challenge by a supplier within a covered public procurement, and issue relevant decisions and recommendations.
4. Where an entity other than the authority referred to in paragraph 3 initially reviews a challenge, the Party shall ensure that the provider is able to appeal the initial decision to an impartial administrative or judicial authority which is independent of the contracting entity whose Hiring is the subject of the challenge.
5. Without prejudice to other dispute procedures provided or developed by each Party, each Party shall ensure that the authority established or designated in accordance with paragraph 3 has at least the following:
(A) a sufficient period for the supplier to prepare and present written challenges, which, in no case, shall be less than 10 days, from the moment the act or omission in which the objection was challenged was known by the supplier or reasonably Should have been known by him;
(B) prompt and written delivery of the decisions related to the challenge, with an explanation of the basis of each decision.
6. Each Party shall adopt or maintain procedures to establish:
(A) prompt interim measures to preserve the ability of the supplier to participate in public procurement, which are applied by the contracting entity or by the impartial authority referred to in paragraph 3. Such measures may have the effect of suspending the procurement process. The procedures may provide for the possibility of taking into account the predominant adverse consequences for the interests concerned, including the public interest, in deciding whether to apply those measures. The reason for not adopting such measures shall be stated in writing; and
(B) where a review body has determined a breach referred to in paragraph 2, remedial action or compensation for loss or damage suffered, in accordance with the national legislation of each Party.
Article 4.17. Modifications and Rectifications of Coverage
1. When a Party modifies its public procurement coverage under this Chapter, the Party:
(A) notify the other Party in writing; and
(B) shall 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 amendment.
2. Notwithstanding sub-paragraph 1 (b), a Party shall not need to grant compensatory adjustments where:
(A) the amendment in question is a minor amendment or a purely formal rectification; or
(B) the proposed amendment covers an entity over which the Party has effectively eliminated its control or influence.
3. If the other Party does not agree that:
(A) a proposed adjustment under the scope of paragraph 1 (b) is adequate to maintain a level comparable to mutually agreed coverage;
(B) the proposed amendment is a minor amendment or rectification under paragraph 2 (a); or
(C) the proposed amendment covers an entity over which the Party has effectively eliminated its control or influence under the scope of paragraph 2 (b);
Shall object in writing within 30 days of receipt of the notice referred to in paragraph 1 or shall be deemed to have reached an agreement on the proposed change or modification, including for the purpose of the dispute settlement mechanism provided for in this Chapter.
4. Where the Parties agree on a proposed amendment, rectification or amendment, including where a Party has not objected within 30 days in accordance with paragraph 3, the Parties shall give effect to the agreement by immediately amending Annex III (Coverage), Through a decision adopted by the Committee.
Article 4.18. Integrity In Public Procurement Practices
Each Party shall establish or maintain procedures to declare ineligibility to participate in public procurements by the Party, either indefinitely or for an established period, of suppliers that the Party determines to have engaged in illegal or fraudulent activities related to public procurement. Upon request by the other Party, the receiving Party shall identify the suppliers determined to be ineligible under these procedures and, where appropriate, exchange information with respect to such suppliers or to fraudulent or illegal activity.
Article 4.19. Future Negotiations
1. At the request of a Party, the other Party may consider additional negotiations with a view to expanding the scope and coverage of this Chapter. If, as a consequence of these negotiations, the Parties agree to amend Annex III (Coverage), the result will be submitted to the Public Procurement Committee established in Article 4.21 (Cooperation) for its implementation.
2. Upon the entry into force of this Agreement, both Parties shall enter into consultations with a view to expanding the list of entities at the central (federal) level of government and their respective related agencies (Section A), subcentral (sub-federal) (Section B), as well as other entities (Section C), as part of each Party's market access offer for procurement.
3. The Parties shall conclude such consultations no later than two years after the date of entry into force of this Agreement and shall notify the other Party of the results of those consultations.
4. The incorporation of new entities at the central level of government, its related agencies (Section A), the sub-federal level of government (Section B), and other government entities (Section C), will require the agreement of The Parties by decision of the Public Procurement Committee, subject to negotiation between the Parties, in accordance with the provisions of this Article.
Article 4.20. Facilitating the Participation of Micro, Small and Medium Enterprises (msmes)
1. The Parties recognize the important contribution that micro, small and medium-sized enterprises (SMMEs) can make to economic growth and employment and the importance of facilitating their participation in public procurement.
2. The Parties also recognize the importance of business partnerships between suppliers of the Parties and in particular of MSMEs, including joint participation in procurement procedures.
3. When a Party maintains measures offering preferential treatment for its MSMEs, it shall ensure that such measures, including eligibility criteria, are objective and transparent.
4. The Parties may:
(A) provide information regarding its measures used to assist, promote, encourage or facilitate the participation of MSMEs in public procurement; and
(B) cooperate in the development of mechanisms to provide information to MSMEs on the means to participate in public procurement covered by this Chapter.
5. The Parties agree to exchange information and work together to facilitate the access of MSMEs to contractual procurement procedures, methods and requirements, focusing on their special needs.
6. To facilitate the participation of MSMEs in covered public procurement, each Party shall:
(A) provide information related to public procurement, including a definition of MSMEs in an electronic portal;
(B) ensure that procurement documents are available for free;
(C) identify MSMEs interested in becoming business partners of other companies in the territory of the other Parties;
(D) develop databases on MSMEs on the territory of each Party for use by entities of other Parties; and
(E) undertake other activities aimed at facilitating the participation of MSMEs in public procurement covered by this Chapter.
Article 4.21. Cooperation
1. The Parties recognize the importance of cooperation as a way to achieve a better understanding of their respective public procurement systems, as well as better access to their respective markets, in particular for MSMEs.
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 public procurement systems;
(C) training and technical assistance to suppliers in access to the public procurement market; and
(D) institutional strengthening for compliance with the provisions of this Chapter, including training or training of public officials.
3. The Parties shall notify the Committee of any cooperation activities.
Article 4.22. Committee on Government Procurement
1. The Parties hereby establish a Joint Committee on Government Procurement (hereinafter the Joint Committee), composed of representatives of both Parties.
2. Unless otherwise agreed by the Parties, the Committee shall meet at least once a year, on the date, place and according to the agenda previously agreed upon by the Parties.
3. The functions of the Committee shall include:
(A) to monitor and evaluate the implementation and administration of this Chapter, including its use and recommend to the Parties the corresponding activities;
(B) assess and follow up on cooperative activities submitted by Parties;
(C) address any other matter relating to this Chapter;
(D) consider conducting additional negotiations with the aim of expanding the coverage of this Chapter;
(E) to make efforts to promote the participation of enterprises of both Parties through a better understanding of the respective public procurement systems, as well as to promote access to public procurement opportunities, especially for SME suppliers.
4. The Parties may establish ad hoc working groups, which shall meet jointly or separately from the Committee.
5. Meetings may be held by any means agreed upon by the Parties. When present, they shall be held alternately in the territory of each Party, and it shall be the responsibility of the Party hosting the meeting. The first meeting of the Committee shall be held not later than one year after the date of entry into force of this Chapter.
6. Unless otherwise agreed by the Parties, the Committee shall be of a permanent nature and shall draw up its rules of procedure.
Chapter 5. Transparency
Article 5.1. Definition
For the purposes of this Chapter, administrative resolution of general application means an administrative resolution or interpretation that applies to all persons and situations that generally fall within its scope and that establishes a norm of conduct, but does not include:
(A) a determination or resolution made in an administrative proceeding that applies to a particular person, commodity or service of either Party in a specific case, or
(B) a decision which decides with respect to a particular act or practice.
Article 5.2. Publication
1. Each Party shall ensure that its laws, regulations, procedures and administrative rulings of general application relating to any matter covered by this Agreement are published promptly or otherwise are made available in a manner that allows interested persons and the Knowledge of them.
2. To the extent possible, each Party shall:
(A) publish any measure referred to in paragraph 1 that it proposes to adopt; and
(B) provide the interested persons and the other Party with a reasonable opportunity to comment on those proposed measures.
Article 5.3. Provision of Information
1. At the request of a Party, the other Party shall provide information as soon as possible and shall answer questions relating to its existing laws, regulations, procedures and administrative rulings of general application and, as far as possible, Relating to any matter covered by this Agreement.
2. The provision of the information referred to in this Article shall be without prejudice to whether or not the measure is considered compatible with this Agreement.
3. The information referred to in this Article may be considered supplied when it has been made available on an official, free and publicly accessible website.
Article 5.4. Administrative Procedures
Each Party shall ensure, in its administrative procedures in which measures relating to any matter covered by this Agreement are applied:
(A) to provide, where possible, to persons of the other Party directly affected by such proceedings when a reasonable notice has been given, including:
(i) a description of the nature of the procedure,
(ii) the presentation of the legal basis under which the procedure is initiated, and
(iii) a general description of any matter in dispute;
(B) where the time, nature of the proceedings and the public interest permit, such persons are given a reasonable opportunity to present facts and arguments in support of their claims, prior to any final administrative action; and
(C) its procedures are in accordance with its legislation.
Article 5.5. Review and Appeal
1. Each Party shall establish or maintain, in accordance with its legal system, courts or judicial or administrative proceedings for the purpose of review and, where appropriate, the correction of final administrative actions related to the matters covered by this Agreement. When such procedures are carried out by the same entity responsible for the administrative decision in question, the Party shall ensure an objective and impartial review of that decision.
2. Each Party shall ensure that, before such tribunals or in such proceedings, the parties to the proceedings are entitled to:
(A) a reasonable opportunity to support or defend their respective claims; and
(B) a decision based on evidence and arguments or, where required by national law, in the file compiled by the administrative authority.
3. Each Party shall ensure that, subject to appeal or subsequent review in accordance with its domestic law, such decisions shall be implemented by its agencies or authorities.
Article 5.6. Relationship with other Chapters
In case of incompatibility between this Chapter and another Chapter, the other Chapter shall prevail to the extent of the incompatibility.