(c) not arbitrarily or unjustifiably discriminate between financial institutions and non-financial institutions in relation to access to services and infrastructure necessary for the operation of digital and electronic payment systems;
(d) adopt or utilize international standards for electronic data exchange between financial institutions and service suppliers to enable greater interoperability between digital and electronic payment systems;
(e) facilitate the use of open platforms and architectures, such as tools and protocols provided for through "APIs", and encourage payment service providers to safely and securely make APIs for their products and services available to third parties, and encourage payment service providers to safely and securely make APIs for their products and services available to third parties, where possible, to facilitate greater interoperability, innovation, and competition in electronic payments; and
(f) facilitate innovation and competition and the introduction of new financial and electronic payment products and services in a timely manner, such as through adopting regulatory and industry sandboxes.
Article 9.18. Digital Identities
Recognising that cooperation between the Parties on digital identities for natural persons and enterprises will promote connectivity and further growth of digital trade, and recognising that each Party may take different legal and technical approaches to digital identities, the Parties shall endeavour to pursue mechanisms to promote compatibility between their respective digital identity regimes. This may include:
(a) developing appropriate frameworks and common standards to foster technical interoperability between each Party's implementation of digital identities; and
(b) developing comparable protection of digital identities under each Party's respective legal frameworks, or the recognition of their legal effects, whether accorded autonomously or by agreement.
Article 9.19. Cooperation
1. Recognising the importance of digital trade to their economies, the Parties shall endeavour to maintain a dialogue on regulatory matters relating to digital trade with a view to sharing information and experiences, as appropriate, including on related laws, regulations, and their implementation, and best practices with respect to digital trade, including in relation to:
(a) online consumer protection;
(b) personal data protection;
(c) anti-money laundering and sanctions compliance for digital trade;
(d) unsolicited commercial electronic messages;
(e) authentication;
(f) challenges for small and medium-sized enterprises in digital trade;
(g) digital government; and
(h) digital identities.
2. The Parties have a shared vision to promote secure digital trade and recognise that threats to cybersecurity undermine confidence in digital trade. Accordingly, the Parties recognise the importance of:
(a) building the capabilities of their government agencies responsible for computer security incident response;
(b) using existing collaboration mechanisms to cooperate to identify and mitigate malicious intrusions or the dissemination of malicious code that affects
the electronic networks of the Parties; and
(c) promoting the development of a strong public and private workforce in the area of cybersecurity, including possible initiatives relating to mutual recognition of qualifications.
Chapter 10. GOVERNMENT PROCUREMENT
Article 10.1. Definitions
For the purposes of this Chapter:
conditions for participation means registration, qualification, and other pre-requisites for participation in a procurement;
construction service means a service that has as its objective the realization by whatever means of civil or building works, based on Division 51 of the United Nations Provisional Central Product Classification (CPC);
electronic auction means an iterative process that involves the use of electronic means for the presentation by suppliers of either new prices, or new values for quantifiable non-price elements of the tender related to the evaluation criteria, or both, resulting in a ranking or re-ranking of tenders;
in writing or written means any worded or numbered expression that can be read, reproduced, and may be later communicated. It may include electronically transmitted and stored information;
limited tendering means a procurement method whereby the procuring entity contacts a supplier or suppliers of its choice;
measure means any law, regulation, procedure, administrative guidance, or practice, or any action of a procuring entity relating to a covered procurement;
multi-use list means a list of suppliers that a procuring entity has determined satisfy the conditions for participation in that list, and that the procuring entity intends to use more than once;
notice of intended procurement means a notice published by a procuring entity inviting interested suppliers to submit a request for participation, a tender, or both;
offset means any condition or undertaking that encourages local development or improves a Party's balance-of-payments accounts, such as the use of domestic content, the licensing of technology, investment, counter-trade, and a similar action or requirement;
open tendering means a procurement method whereby all interested suppliers may submit a tender;
procuring entity means an entity covered under a Party's Schedule included in Annex 10A and Annex 10B
qualified supplier means a supplier that a procuring entity recognizes as having satisfied the conditions for participation;
selective tendering means a procurement method whereby only qualified suppliers are invited by the procuring entity to submit a tender;
services includes construction services, unless otherwise specified;
standard means a document approved by a recognized body that provides for common and repeated use, rules, guidelines, or characteristics for goods or services, or related processes and production methods, with which compliance is not mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking, or labelling requirements as they apply to a good, service, process or production method;
supplier means a person or group of persons who provides or could provide goods or services to a procuring entity; and
technical specification means a tendering requirement prescribed by a covered entity that:
(a) lays down the characteristics of goods or services to be procured, including quality, performance, safety, and dimensions, or the processes and methods for their production or provision; or
(b) addresses terminology, symbols, packaging, marking, or labelling requirements, as they apply to a good or service.
Article 10.2. General
The Parties recognise the importance of government procurement in trade relations and set as their objective the effective, reciprocal, and gradual opening of their government procurement markets.
Article 10.3. Scope and Coverage
Application of Chapter
1. This Chapter shall apply to any measure of a Party regarding covered procurement.
2. For the purposes of this Chapter, covered procurement means a government procurement:
(a) of goods, services or any combination thereof
(i) as specified in each Party's Schedule, included in Annex 10A and Annex 10B; and
(ii) not procured 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;
(b) by any contractual means, including purchase, rental or lease, and hire purchase, 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, included in Annex 10A and Annex 10B at the time of publication of a notice of intended procurement in accordance with Article 10.7;
(d) by a procuring entity; and
(e) that is not otherwise excluded from coverage in paragraph 3 or in a Party's Schedule, included in Annex 10A or Annex 10B.
Activities Not Covered
3. Unless otherwise provided in a Party's Schedule, included in Annex 10A and Annex 10B, this Chapter shall not apply to:
(a) the acquisition or rental of land, existing buildings, or other immovable property or 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, and fiscal incentives;
(c) the procurement or acquisition of fiscal agency or depository services, liquidation and management services for regulated financial institutions, or services related to the public debt, including loans and government bonds, notes, and other securities. For greater certainty, this Chapter shall not apply to procurement of banking, financial, or specialized services related to the following activities:
(i) the incurring of public indebtedness; or
(ii) public debt management;
(d) public employment contracts;
(e) procurement 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, or under the particular procedure or condition of an international organization, or funded by international grants, loans, or other assistance where the applicable procedure or condition would be inconsistent with this Chapter;
(f) procurement conducted for the specific purpose of providing foreign assistance; and
(g) purchases for a procuring entity from another public entity, provided that the procurement is directly related to the legal object of the supplying public entity.
Schedules
4. Each Party shall specify the following information in its Schedule, included in Annex 10A and Annex 10B:
(a) in Section A, the central government entities whose 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, any general notes;
(e) in Section E, procurement information;
(f) in Section F, offsets;
(g) in Section G, the treatment of SMEs; and
(h) in Section H, relevant time periods.
5. Where a procuring entity, in the context of covered procurement, requires persons not listed in Annex 10A or Annex 10B to procure in accordance with particular requirements, Article 10.5 shall apply, mutatis mutandis, to such requirements.
Valuation
6. In estimating the value of a procurement for the purpose of ascertaining whether it is a covered procurement, a procuring entity shall:
(a) neither divide a procurement into separate procurements nor select or use a particular valuation method for estimating the value of a procurement with the intention of totally or partially excluding it from the application of this Chapter; and
(b) include the estimated maximum total value of the procurement over its entire duration, whether awarded to one or more suppliers, taking into account all forms of remuneration, including:
(i) premiums, fees, commissions, interest, or other revenue streams that may be provided for under the contract;
(ii) the value of any option clause, and where the procurement provides for the possibility of options; and
(iii) any contract awarded at the same time or over a given period to one or more suppliers under the same procurement.
7. Where an individual requirement for a procurement results in the award of more than one contract, or in the award of contracts in separate parts (hereinafter referred to as "recurring procurements"), the calculation of the estimated maximum total value shall be based on:
(a) the total maximum value of the procurement over its entire duration;
(b) the value of recurring procurements of the same type of good or service awarded during the preceding 12 months or the procuring entity's preceding fiscal year, adjusted, where possible, to account for anticipated changes in the quantity or value of the good or service being procured over the following 12 months; or
(c) the estimated value of recurring procurements of the same type of good or service to be awarded during the 12 months following the initial contract award or the procuring entity's fiscal year.
8. Where the estimated maximum total value of a procurement over its entire duration is not known, the procurement shall be covered by this Chapter.
Article 10.4. Security and General Exceptions
1. Nothing in this Agreement shall be construed to prevent any Party from taking any action or not disclosing any information that it considers necessary for the protection of its essential security interestsrelating to the procurement of arms, ammunition or war materials, or to procurement indispensable for national security or for national defence purposes.
2. Subject to the requirement that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between the Parties where the same conditions prevail, or a disguised restriction on trade between the Parties, nothing in this Chapter shall be construed to prevent a Party from imposing or enforcing measures:
(a) necessary to protect public morals, order, or safety;
(b) necessary to protect human, animal, or plant life or health;
(c) necessary to protect intellectual property; or
(d) relating to goods or services of persons with disabilities, philanthropic institutions, or prison labour.
3. The Parties understand that paragraph 2(b) includes environmental measures necessary to protect human, animal, or plant life or health.
Article 10.5. General Principles
National Treatment and Non-Discrimination
1. With respect to any measure regarding covered procurement, 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 offering such goods or services, 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 any measure regarding covered procurement, a Party, including its procuring entities, shall not:
(a) treat a locally established supplier less favourably than another locally established supplier on the basis of the 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 goods or services offered by that supplier for a particular procurement are goods or services of the other Party.
Use of Electronic Means
3. The Parties recognize the importance of providing opportunities for covered procurement to be undertaken through electronic means, including for the publication of procurement information, notices, and tender documentation, for the receipt of tenders, and, generally, for the full cycle of procure to pay.
4. When conducting covered procurement by electronic means, a procuring entity shall:
(a) ensure that the procurement is conducted using information technology systems and software, including those related to authentication and encryption of information, that are generally available and interoperable with other generally available information technology systems and software; and
(b) establish and maintain mechanisms that ensure the integrity of requests for participation and tenders, including by documenting the time of receipt and by preventing inappropriate access.
Measures Not Specific to Procurement
5. The provisions of 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.
Offsets
6. With regard to covered procurement, a Party, including its procuring entities, shall not seek, take account of, impose, or enforce offsets except as otherwise provided in its Schedule, included in Annex 10A and Annex 10B.
Rules of Origin
7. For the purposes of covered procurement, each 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 that the Party applies at the same time, in the normal course of trade, to imports or supplies of the same goods or services from the other Party.
Conduct of Procurement
8. A procuring entity shall conduct covered procurement in a transparent and impartial manner that:
(a) is consistent with this Chapter, using methods such as open tendering, selective tendering, and limited tendering
(b) avoids conflicts of interest; and
(c) prevents corrupt practices.
Article 10.6. Information on the Procurement System and Publication of Procurement Information
1. Each Party shall promptly publish its procurement laws, regulations, procedures, policy guidelines, judicial decisions, and administrative rulings of general application regarding covered procurements, as well as any changes or additions to this information, in electronic or paper media that are widely disseminated and remain accessible to the public.
2. Each Party shall list in Section E of its Schedule, included in Annex 10A and Annex 10B the electronic or paper media in which each Party publishes the information described in paragraph 1.
3. Each Party shall promptly reply to any request from the other Party for an explanation of any matter relating to its procurement laws, regulations, procedures, policy guidelines, judicial decisions, and administrative rulings of general application.
Article 10.7. Publication of Notices of Intended Procurement
Notice of Intended Procurement
1. For each covered procurement, except in the circumstances described in Article 10.12, a procuring entity shall publish a notice inviting interested suppliers to submit tenders or, where appropriate, applications for participation in the procurement. Any such notice shall be published in an electronic or paper medium that is widely disseminated and readily accessible to the public, free of charge, for the entire period established for tendering.
2. Each Party shall ensure for covered procurements that its central government procuring entities, as set out in Section A of its Schedule, included in Annex 10A and Annex 10B, publish notices of intended procurement in a single point of entry to an electronic publication, that is accessible through the internet or a comparable network.
3. Except as otherwise provided in this Chapter, each notice of intended procurement shall include:
(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, if any;
(b) a description of the procurement, including the nature and quantity of the goods or services to be procured, or where the quantity is not known, the estimated quantity;
(c) if applicable, the time-frame for delivery of goods or services or the duration of the contract;
(d) the procurement method that will be used and whether it will involve negotiation or electronic auction;
(e) where applicable, the address and any final date for the submission of requests for participation in the procurement;
(f) the address and the final date for the submission of tenders;
(g) a list and brief description of any conditions for participation of suppliers, that may include any requirements for specific documents or certifications that suppliers must provide in connection therewith, unless such requirements are included in tender documentation that is made available to all interested suppliers at the same time as the notice of intended procurement;
(h) where, pursuant to Article 10.11, 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, where applicable, any limitation on the number of suppliers that will be permitted to tender;
(i) the language or languages in which tenders or requests for participation may be submitted, in case they may be submitted in a language other than an official language of the Party of the procuring entity; and
(j) an indication that the procurement is covered by this Chapter.
Notice of Planned Procurement
4. Each Party shall encourage its procuring entities to publish prior to each fiscal year or as early as possible in each fiscal year, a notice regarding their procurement plans for that fiscal year. The notice of planned procurement should include the subject-matter of the procurement and the planned date of the publication of the notice of the intended procurement.
Article 10.8. Conditions for Participation
1. A procuring entity shall limit any conditions for participation in a procurement to those that are essential to ensure that a supplier has the legal, commercial, technical, and financial abilities to undertake the relevant procurement.
2. In assessing whether a supplier satisfies the conditions for participation, a procuring entity:
(a) shall evaluate the financial, commercial and technical abilities of a supplier on the basis of that supplier's business activities both inside and outside the territory of the Party of the procuring entity;
(b) shall base its evaluation solely on the conditions that a procuring entity has specified in advance in notices or tender documentation;
(c) shall not impose the condition that, in order for a supplier to participate in a procurement or be awarded a contract, the supplier has previously been awarded one or more contracts by a procuring entity of that Party or that the supplier has prior work experience in the territory of that Party; and
(d) may require prior experience where essential to meet the requirements of the procurement.