(b) when all procurement documents that are made available to the public by electronic means are published as of the date of publication of the notice of intended procurement, and
(c) when the bids can be received by electronic means by the contracting entity.
The use of this paragraph, in conjunction with paragraph 2, may not result in reducing the bidding deadlines set forth in paragraph 1 to less than ten (10) days from the date of publication of the notice of intended procurement.
Article 10.10. Procurement Procedures
Open Bidding
1. A procuring entity shall award its contracts through open tendering procedures, except where Article 10.10.2 applies.
Other Procurement Procedures
2. Provided that this provision is not used to prevent competition among suppliers or in a manner that discriminates against suppliers of the other Party, or protects domestic suppliers, a procuring entity may use other procurement procedures only in the following circumstances:
(a) provided that the requirements of the procurement documents are not substantially modified, when:
(i) no bid was submitted or no supplier has requested to participate;
(ii) no bid meeting the essential requirements of the bidding documents was submitted;
(iii) no supplier complied with the conditions of participation; or
(iv) collusion in the submission of bids;
(b) when the goods or services can be supplied only by a particular supplier and there is no reasonable alternative or substitute goods or service due to any of the following reasons:
(i) the requirement is for the realization of a work of art,
(ii) the protection of patents, copyrights or other exclusive intellectual property rights; or
(iii) due to the absence of competition for technical reasons, as in the case of the procurement of services intuitu personae;
(c) for additional deliveries or services from the initial supplier of goods or services that were not included in the initial procurement, when the change of supplier of such additional goods or services:
(i) cannot be done for economic or technical reasons such as interchangeability or compatibility requirements with existing equipment, software, services or facilities that were the subject of the initial procurement, and
(ii) would cause significant inconvenience or substantial duplication of costs to the procuring entity,
in the case of construction services, the total value of contracts awarded for such additional services shall not exceed fifty (50) percent of the amount of the initial contract, provided that such services have been contemplated in the objectives contained in the procurement documents and have become necessary to complete the work due to unforeseen reasons;
(d) to the extent strictly necessary, when for reasons of extreme urgency caused by events unforeseen by the procuring entity, the goods or services cannot be obtained in time through open or selective competitive bidding, and the use of such procedures would result in serious prejudice to the procuring entity;
(e) for purchases of goods made in a commodities market,
(f) when a procuring entity procures a prototype or first commodity in limited quantity or contracts for a service that is developed upon request in the course of, and for, a particular contract for research, experiment, study or original development, or
(g) when a contract is awarded to the winner of a design competition, provided that
(i) the competition has been organized in a manner that is consistent with the principles of this Chapter, in particular with respect to the publication of the notice of intended procurement and
(ii) the participants are rated or evaluated by an independent jury or body with a view to the conclusion of a design contract that is awarded to a winner.
3. A procuring entity shall maintain records or prepare a written report for each procurement awarded under paragraph 2, in a manner consistent with Article 10.13.3. Where a Party prepares written reports under this paragraph, they shall include the name of the procuring entity, the value and nature of the goods or services procured, and a justification indicating the circumstances and conditions described in paragraph 2 that justify the use of alternative procurement procedures. Where a Party maintains records, the records shall indicate the circumstances and conditions described in paragraph 2 that justify the use of alternative procurement procedures.
Article 10.11. Electronic Auctions
Where a procuring entity intends to conduct a covered procurement using an electronic auction, the procuring entity shall provide each participant, before the electronic auction commences, with the following information:
(a) the automatic evaluation method, including the mathematical formula, that is based on the evaluation criteria set forth in the procurement documents and that will be used in the automatic ranking or reclassification during the auction;
(b) the results of any initial evaluation of the elements of its bid when the contract is awarded on the basis of the most advantageous bid; and
(c) any other relevant information on the conduct of the auction.
Article 10.12. Opening of Bids and Award of Contracts
Treatment of Offers
1. A procuring entity shall receive and process all bids under procedures that ensure the equality and faimess of the procurement process, and the confidentiality of bids.
2. Where a procuring entity provides suppliers with the opportunity to correct any unintentional errors of form between the bid opening period and the award of the contract, the procuring entity shall provide the same opportunity to all participating suppliers.
Awarding of Contracts
3. A procuring entity shall require that, in order to be considered for an award, the bid:
(a) is submitted in writing by a supplier that meets all the conditions for participation; and
(b) at the time of opening, shall be in conformity with the specified essential requirements in the notices and procurement documents.
4. Unless a procuring entity determines that the award of a procurement contract is against the public interest, the procuring entity shall award the contract to the supplier that the procuring entity has determined meets the conditions of participation and is fully capable of fulfilling the contract and whose tender is considered the most advantageous based solely on the requirements and evaluation criteria specified in the notices and procurement documents, or, where price is the sole evaluation criterion, the lowest price.
5. When a procuring entity receives a tender whose price is abnormally lower than the prices of the other tenders submitted, the entity may verify with the supplier whether the supplier complies with the conditions for participation and has the capacity to perform the contract.
6. A procuring entity may not cancel a procurement or terminate or modify a procurement contract that has been awarded for the purpose of evading this Chapter.
Article 10.13. Transparency of Procurement Information
Information to Be Provided to Suppliers
1. A procuring entity shall promptly inform participating suppliers of its decision on the award of a procurement contract and, upon request, shall do so in writing. Subject to Article 10.14, a procuring entity shall, upon request, provide the supplier whose tender was not selected with the reasons for its decision and the relative advantages of the successful tender.
Publication of Award Information
2. As soon as practicable after an award, a procuring entity shall publish in an electronic or print medium that is widely disseminated and easily accessible to the public, a notice that includes, at a minimum, the following information about the contract award:
(a) the name of the contracting entity;
(b) a description of the goods or services contracted;
(c) the date of the award;
(d) the name of the supplier to whom the contract was awarded;
(e) the value of the contract, and
(f) where the procuring entity has not used open tendering, an indication of the circumstances that justified the use of such procedure in accordance with Article 10.10.2.
Record Keeping
3. A procuring entity shall maintain reports or records of procurement proceedings relating to covered procurement, including the reports referred to in Article 10.10.3, and shall maintain such reports or records for a period of at least three (3) years after the date of award of a contract.
Article 10.14. Disclosure of Information
Delivery of Information to the other Party
1. On request of a Party, the other Party shall provide in a timely manner information necessary to determine whether a procurement has been conducted fairly, impartially and in accordance with this Chapter. Such information shall include information on the characteristics and relative advantages of the successful tender.
Non-Disclosure of Information
2. No Party, including its contracting entities, authorities or review bodies, may disclose information that the person who provided it has designated as confidential, in accordance with its national legislation, except with the authorization of that person.
3. Without prejudice to any other provision of this Chapter, no Party, including its procuring entities, shall provide any particular supplier with information that may prejudice fair competition between suppliers.
4. Nothing in this Chapter shall be construed to require a Party, including its contracting entities, authorities and review bodies, to disclose confidential information under this Chapter, if such disclosure would:
(a) prevent compliance with the law;
(b) harm fair competition among suppliers;
(c) prejudice the legitimate commercial interests of private parties, including the protection of intellectual property; or
(d) otherwise be contrary to the public interest.
Article 10.15. National Review Procedures for the Filing of Appeals
1. Each Party shall ensure that its procuring entities give fair and timely consideration to any complaint by its suppliers regarding an allegation of non-compliance with this Chapter arising in the context of a covered procurement in which they have or have had an interest. Each Party shall encourage its suppliers to seek clarification from its procuring entities through consultations with a view to facilitating the resolution of any such complaints.
2. Each Party shall provide a timely, effective, transparent and non-discriminatory administrative or judicial review procedure, in accordance with the principle of due process, through which a supplier may file a complaint alleging a breach of this Chapter arising in the context of covered procurement in which the supplier has or has had an interest.
3. Each Party shall establish or designate at least one impartial administrative or judicial authority, independent of its procuring entities, to receive and review a challenge filed by a supplier in a covered procurement, and to issue appropriate determinations and recommendations.
4. Where a body other than the authority referred to in paragraph 3 initially reviews a challenge, the Party shall ensure that the supplier may appeal the initial decision to an impartial administrative or judicial authority that is independent of the procuring entity whose procurement is the subject of the challenge.
5. Each Party shall adopt or maintain procedures that establish:
(a) rapid interim measures to preserve the supplier's ability to participate in the procurement, which are applied by the procuring entity or the impartial authority referred to in paragraph 3. The procedures may provide that the prevailing adverse consequences for the interests concemed, including the public interest, may be taken into account in deciding whether such measures should be applied. The reason for not taking such measures shall be stated in writing; and
(b) where a review body has determined the existence of a breach referred to in paragraph 2, corrective measures or compensation for loss or damage suffered, in accordance with the national legislation of each Party.
Article 10.16. Modifications and Amendments to Coverage
1. When a Party modifies its procurement coverage under this Chapter, the Party:
(a) shall 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 modification.
2. Notwithstanding subparagraph 1(b), a Party need not grant compensatory adjustments where:
(a) the modification in question is a minor amendment or a rectification of a purely formal nature; or
(b) the proposed modification covers an entity over which the Party has effectively eliminated control or influence.
3. If the other Party does not agree that:
(a) a proposed adjustment under the scope of subparagraph 1(b) is adequate to maintain a comparable level of mutually agreed coverage;
(b) the proposed modification is a minor amendment or rectification within the scope of subparagraph 2 (a); or
(c) the proposed modification covers a contracting entity over which the Party has effectively eliminated its control or influence under the scope of subparagraph 2(b),
must object in writing within thirty (30) days of receipt of the notice referred to in paragraph 1 or agreement on the proposed change or modification shall be deemed to have been reached even for the purposes of Chapter 15 (Dispute Settlement).
4. When the Parties agree on the proposed modification, rectification or amendment, including when a Party has not objected within thirty (30) days under the scope of paragraph 3, the Parties shall give effect to the agreement by immediately modifying Annex 10.1 (Annex on Coverage) through the Commission.
Article 10.17. Integrity In Procurement Practices
Each Party shall establish or maintain procedures for declaring the ineligibility to participate in the Party's procurement, either indefinitely or for a prescribed period, of suppliers that the Party determines to have engaged in illegal or fraudulent activities relating to goverment procurement. Upon request of the other Party, the Party receiving the request shall identify the suppliers determined to be ineligible under these procedures and, where appropriate, exchange information with respect to these suppliers or the fraudulent or illegal activity.
Article 10.18. Additional Negotiations
At the request of a Party, the other Party may consider conducting additional negotiations for the purpose of expanding the scope and coverage of this Chapter. If as a result of such negotiations the Parties agree to modify the Annexes to this Chapter, the result shall be submitted to the Committee on Government Procurement established in Article 10.21 for implementation.
Article 10.19. Participation of Micro, Small and Medium-Sized Enterprises
1. The Parties recognize the importance of the participation of micro, small and medium-sized enterprises in public procurement.
2. The Parties also recognize the importance of business alliances between suppliers of each Party, and in particular micro, small and medium-sized enterprises, including joint participation in bidding procedures.
Article 10.20. Cooperation
1. The Parties recognize the importance of cooperation as a way to achieve a better understanding of their respective government procurement systems, as well as better access to their respective markets, particularly for micro, small and medium-sized enterprises.
2. The Parties shall make their best efforts to cooperate on issues such as:
(a) exchange of experiences and information, including regulatory framework, best practices and statistics;
(b) development and use of electronic means of information in public procurement systems;
(c) training and technical assistance to suppliers on access to the public procurement market, and
(d) institutional strengthening for compliance with this Chapter, including the training of public officials.
Article 10.21. Public Procurement Committee
1. The Parties establish a Govemment Procurement Committee (hereinafter the Committee), composed of representatives of each Party.
2. The functions of the Committee shall include:
(a) monitor the implementation and administration of this Chapter, including its use, and recommend to the Commission the corresponding activities;
(b) report to the Commission on the implementation and administration of this Chapter, as appropriate;
(c) evaluate and follow up on cooperation activities;
(d) consider conducting additional negotiations with the objective of expanding the coverage of this Chapter, and
(e) to deal with any other matter related to this Chapter.
3. Unless otherwise agreed by the Parties, the Committee shall meet at least once (1) a year, on the date and according to the agenda previously agreed by the Parties. The Parties shall determine those cases in which extraordinary meetings may be held.
4. The meetings may be held by any means agreed upon by the Parties. When they are face-to-face, they shall be held altemately in the territory of each Party, and it shall be the responsibility of the host Party to organize the meeting. The first meeting of the Committee shall be held no later than one (1) year after the date of entry into force of this Agreement.
5. Unless otherwise agreed by the Parties, the Committee shall be of a permanent nature and shall develop its working rules.
6. All decisions of the Committee shall be made by mutual agreement. Article 10.22: Definitions For the purposes of this Chapter:
notice of intended procurement means a notice published by the procuring entity inviting interested suppliers to submit a request for participation, a bid, or both;
conditions of participation means any registration, qualification or other prerequisites for participation in a public procurement;
special compensatory conditions means any conditions or commitments that encourage local development or improve a Party's balance of payments accounts, such as local content requirements, technology licensing, investment requirements, countertrade or similar requirements;
contracting entity means an entity listed in Schedule 10.1 (Schedule of Coverage);
written or in writing means any expression in words, numbers or other symbols, which can be read, reproduced and subsequently communicated. It may include information transmitted and stored electronically;
technical specification means a procurement requirement that
(a) establishes the characteristics of the goods or services to be contracted, including quality, performance, safety and dimensions, or the processes and methods for their production or provision; or
(b) establish terminology, symbols, packaging, marking or labeling requirements as they apply to a good or service;
open bidding means a method of procurement in which all interested suppliers may submit a bid;
commercial goods or services means goods or services of a kind that are generally sold or offered for sale in the commercial market to, and normally purchased by, nongovernmental purchasers for nongovernmental purposes;
standard means a document approved by a recognized body, which provides, for common and repeated use, rules, guidelines or characteristics for goods, or related services or processes and methods of production, compliance with which is not mandatory. It may also include or refer exclusively to requirements for terminology, symbols, packaging, markings or labeling as they apply to a product, service, process or method of production;
supplier means a person who provides or could provide goods or services to a contracting entity;
services includes construction services, unless otherwise specified; construction service means a service the object of which is the performance by any means of civil or construction work, based on Division 51 of the provisional version of the United Nations Central Product Classification (CPC); and
electronic auction means an iterative process in which suppliers use electronic means to submit new prices or new values for quantifiable non-price bid elements, or both, that are linked to the evaluation criteria, resulting in a ranking or reclassification of bids.
Chapter 11. Competition Policy
Article 11.1. Objectives
The purpose of this Chapter is to ensure that the benefits of trade liberalization under this Agreement are not undermined by anti-competitive practices, as well as to promote cooperation between the Parties in the application of their respective competition laws.
Article 11.2. Legislation and Competent Authorities
1. Each Party shall adopt or maintain national competition legislation that comprehensively and effectively addresses anticompetitive practices in order to promote economic efficiency and consumer welfare.
2. Each Party shall establish or maintain an authority responsible for the enforcement of its respective competition laws.
3. Each Party shall maintain its autonomy to develop and apply its respective competition legislation.
4. Each Party shall ensure that its respective national competition authorities act in accordance with the principles of transparency, non-discrimination and due process in the application of their respective competition laws.
Article 11.3. Cooperation
1. The Parties recognize the importance of cooperation and coordination between their respective national competition authorities to promote the effective enforcement of their respective competition laws.
2. Accordingly, the Parties shall cooperate in matters relating to the application of competition policy and law, including notification, exchange of information and consultations, in accordance with Articles 11.4, 11.5 and 11.6, respectively.
3. The Parties, through their competition authorities or competent competition authorities, may sign cooperation agreements or arrangements for the purpose of strengthening cooperation in competition matters.
Article 11.4. Notifications
1. The competition authority of a Party shall notify the competition authority of the other Party of any activity in the application of its competition laws if it considers that such activity may affect important interests of the other Party.
2. Provided that itis not contrary to the domestic law of the Parties, nor does it affect any ongoing investigation, notification shall be made at an early stage of the administrative proceeding. The competition authority of the Party conducting the enforcement activity of its competition law may take into consideration the comments received from the other Party in its determinations.
Article 11.5. Exchange of Information
1. The Parties recognize the value of transparency in competition policies.
2. In order to facilitate the effective application of their respective competition laws, the Parties may exchange information at the request of one of them, provided that this is not contrary to their national laws and does not affect any ongoing investigation.
Article 11.6. Consultations
To promote understanding between the Parties or to address specific matters arising under this Chapter, each Party shall, at the request of the other Party, initiate consultations. The requesting Party shall indicate how the matter affects trade between the Parties. The requested Party shall give the utmost consideration to the concems of the other Party.