3. Where 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 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 acts or omissions that adversely reflect on the commercial integrity of the supplier; or
(f) failure to pay taxes.
Article 10.9. Registration and 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. Each Party shall ensure that:
(a) its procuring entities make efforts to minimize differences in their qualification procedures; and
(b) where its procuring entities maintain registration systems, the entities make efforts to minimize differences in their registration systems.
3. A Party, including its procuring entities, shall not adopt or apply any registration system or qualification procedure with the purpose or effect of creating unnecessary obstacles to the participation of suppliers of the other Party in its procurement.
Selective Tendering
4. Where a Party's law allows the use of selective tendering procedures, a procuring entity shall, for each intended procurement:
(a) include in the notice of intended procurement at least the information specified in Article 10.7.3 subparagraphs (a), (b), (d), (e), (g), (h), (i) and (j) and invite suppliers to submit a request for participation; and
(b) provide, no later than the commencement of the time-period for tendering, at least the information in Article 10.7.3 subparagraphs (c) and (f) regarding qualified suppliers.
5. A procuring entity shall allow all qualified suppliers to participate in a particular procurement, unless the procuring entity states in the notice of intended procurement any limitation on the number of suppliers that will be permitted to tender and the criteria for selecting the limited number of suppliers.
6. Where the tender documentation is not made publicly available from the date of publication of the notice referred to in paragraph 4, a procuring entity shall ensure that the tender documentation is made available at the same time to all the qualified suppliers selected in accordance with paragraph 5.
Multi-Use Lists
7. A procuring entity may establish a multi-use list, provided that the entity annually publishes or otherwise makes available, continuously, in electronic means, a notice inviting interested suppliers to apply for inclusion on 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 on the list and the methods that the procuring entity will use to verify a supplier's satisfaction of the conditions;
(c) the name and address of the procuring entity and other information necessary to contact the procuring entity and to obtain all relevant documents relating to the list;
(d) the period of validity of the list and the means for its renewal or termination, or where the period of validity is not provided, an indication of the method by which notice will be given of the termination of the use of the list; and
(e) an indication that the list may be used for procurement covered by this Chapter.
8. A procuring entity shall allow suppliers to apply for inclusion on a multi-use list and shall include all qualified suppliers on the list within a reasonably short period of time.
9. Notwithstanding paragraph 7, where a multi-use list will be valid for three years or less, a procuring entity may publish the notice referred to in paragraph 7 only once, at the beginning of the period of validity of the list, provided that the notice:
(a) states the period of validity and that further notices will not be published; and
(b) is published by electronic means and is made available continuously during the period of its validity.
10. Where a supplier that is not included on a multi-use list submits a request for participation in a procurement based on a multi-use list and all required documents, within the time-period provided for in Article 10.10, a procuring entity shall examine the request.
The procuring entity shall not exclude the supplier from consideration in respect of the procurement on the grounds that the entity has insufficient time to examine the request, unless, in exceptional cases due to the complexity of the procurement, the 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
11. A procuring entity shall promptly inform any supplier that submits a request for participation in a procurement or application for inclusion on a multi-use list of the decision with respect to the request or application.
12. If a procuring entity rejects a supplier's request for participation or application for inclusion on a multi-use list, ceases to recognize 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. Time Periods
1. A procuring entity shall, consistent with its own reasonable needs, provide sufficient time for suppliers to prepare and submit requests for participation and responsive tenders, taking into account such factors as:
(a) the nature and complexity of the procurement;
(b) the extent of subcontracting anticipated; and
(c) whether tenders can be received by electronic means.
2. The time periods for procurement in each Party shall be in accordance with Section H of Annex 10A.
Article 10.11. Intended Procurements and Tender Documentation
Tender Documentation
1. A procuring entity shall promptly make available to any supplier interested in participating in a procurement tender documentation that includes all information necessary to permit suppliers to prepare and submit responsive tenders.
2. Unless already provided in the notice of intended procurement, such documentation shall include a complete description of:
(a) the procurement, including the nature and the quantity of the goods or services to be procured or, where the quantity is not known, the estimated quantity and any requirements to be fulfilled, including any technical specifications, conformity assessment certifications, plans, drawings, or instructional materials;
(b) any conditions for participation of suppliers, including any financial guarantees, information, and documents that suppliers are required to submit;
(c) all evaluation criteria to be considered in the awarding of the contract, and the relative importance of such criteria;
(d) where the procuring entity will conduct the procurement by electronic means, any authentication and encryption requirements or other requirements related to the submission of information by electronic means;
(e) where the procuring entity will hold an electronic auction, the rules, including identification of the elements of the tender related to the evaluation criteria, on which the auction will be conducted;
(f) where there will be a public opening of tenders, the date, time, and place for the opening of tenders and, where appropriate, the persons authorized to be present;
(g) any other terms or conditions, including terms of payment and any limitation on the means by which tenders may be submitted, e.g., paper or electronic means; and
(h) any dates for the delivery of goods or the supply of services.
3. A procuring entity shall promptly reply to any reasonable request for relevant information by any interested or participating supplier, provided that such information does not give that supplier an advantage over other suppliers.
4. If, in tendering procedures, an entity allows tenders to be submitted in several languages, one of those languages shall be English.
5. To the extent possible and subject to any applicable fees, an entity should endeavour to make relevant tender documentation publicly available through electronic means or a computer-based telecommunications network openly accessible to all suppliers.
6. In establishing any date for the delivery of a good or the supply of a service being procured, a procuring entity may consider factors such as the complexity of the procurement.
Technical Specifications
7. A procuring entity shall not prepare, adopt or apply any technical specification or prescribe any conformity assessment procedure with the purpose or effect of creating unnecessary obstacles to international trade between the Parties.
8. In prescribing the technical specifications for the goods or services being procured, a procuring entity shall, where appropriate:
(a) specify the technical specification in terms of performance and functional requirements, rather than design or descriptive characteristics; and
(b) base the technical specification on international standards where they exist; otherwise, on national technical regulations, recognized national standards, or building codes
9. Where design or descriptive characteristics are used in the technical specifications, a procuring entity shall indicate, where appropriate, that it will consider tenders of equivalent goods or services that demonstrably fulfil the requirements of the procurement by including words such as "or equivalent" in the tender documentation.
10. A procuring entity shall not prescribe 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 sufficiently precise or intelligible way of describing the procurement requirements and provided that, in such cases, the entity includes words such as "or equivalent" in the tender documentation.
11. A procuring entity shall not seek or accept, in a manner that would have the effect of precluding competition, advice that may be used in the preparation or adoption of any technical specification for a specific procurement from a person that may have a commercial interest in the procurement.
12. For greater certainty, a procuring entity may, in accordance with this Article, prepare, adopt or apply technical specifications to promote the conservation of natural resources or protect the environment.
13. For greater certainty, this Chapter is not intended to preclude a Party, or its procuring entities, from preparing, adopting, or applying technical specifications required to protect sensitive government information, including specifications that may affect or limit the storage, hosting, or processing of such information outside the territory of the Party.
Modifications
14. where, prior to the award of a contract, a procuring entity modifies the criteria or technical requirements set out in a notice of intended procurement or tender documentation provided to participating suppliers, or amends or reissues a notice or tender documentation, it shall publish or provide in writing all such modifications or amended or re-issued notices or tender documentation:
(a) to all participating suppliers, if the identities of such suppliers are known, and, in all other cases, in the same manner that the original information was made available; and
(b) in adequate time to allow participating suppliers to modify and resubmit amended tenders, as appropriate.
Article 10.12. Negotiation
1. A Party may provide for its procuring entities to conduct negotiations where:
(a) the procuring entity has indicated its intent to conduct negotiations in the notice of intended procurement as set forth in Article 10.7.1 through 10.7.3;
(b) it appears from the evaluation that no tender is obviously the most advantageous in terms of the specific evaluation criteria set out in the notice of intended procurement or tender documentation;
(c) there is a need to clarify the terms and conditions; or
(d) all bids exceed the allocated prices provided for in the procuring entity's budget.
2. A procuring entity shall:
(a) ensure that any elimination of suppliers participating in negotiations is carried out in accordance with the evaluation criteria set out in the notice of intended procurement or tender documentation; and
(b) where negotiations are concluded, provide a common deadline for the remaining participating suppliers to submit any new or revised tenders.
Article 10.13. Limited Tendering
1. Provided that it does not use this provision for the purposes of avoiding competition among suppliers or in a manner that discriminates against suppliers of the other Party or protects domestic suppliers, a procuring entity may use limited tendering and may choose not to apply Articles 10.7, 10.8, 10.9, 10.10, Articles 10.11.1 through 10.11.6, 10.11.11, and Articles 10.12, 10.14, 10.15 to such tenders.
2. A procuring entity may use limited tendering only under any of the following circumstances:
(a) provided that the requirements of the tender documentation are not substantially modified, where:
(i) no tenders were submitted or no suppliers requested participation;
(ii) no tenders that conform to the essential requirements of the tender documentation were submitted;
(iii) no suppliers satisfied the conditions for participation; or
(iv) the tenders submitted were collusive.
(b) where the goods or services can be supplied only by a particular supplier and no reasonable alternative or substitute goods or services exist 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 of goods or services that were not included in the initial procurement, where:
(i) a change of supplier for such additional goods or services cannot be made for economic or technical reasons, such as requirements of interchangeability or interoperability with existing equipment, software, services, or installations procured under the initial procurement; and
(ii) such separation would cause significant inconvenience or substantial duplication of costs for the procuring entity;
(d) insofar as is strictly necessary where, for reasons of extreme urgency brought about by events unforeseeable by the procuring entity, the goods or services could not be obtained in time using open tendering or selective tendering;
(e) for goods purchased on a commodity market;
(f) where a procuring entity procures a prototype or a first good or service 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 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;
(g) for purchases made under exceptionally advantageous conditions that only arise in the very short term in the case of unusual disposals such as those arising from liquidation, receivership, or bankruptcy, but not for routine purchases from regular suppliers;
(h) where a contract is awarded to a winner of a design contest provided that:
(i) the contest has been organized in a manner that is consistent with the principles of this Chapter, in particular relating to the publication of a notice of intended procurement; and
(ii) the participants are judged by an independent jury with a view to a design contract being awarded to a winner; and
(i) where additional construction services, which were not included in the initial contract but which were within the objectives of the original tender documentation have, through unforeseen circumstances, become necessary to complete the construction services described therein. In such cases, the total value of contracts awarded for additional construction services may not exceed 50 percent of the amount of the initial contract.
3. For each contract awarded under paragraph 1, a procuring entity shall prepare a written report that includes:
(a) the name of the procuring entity;
(b) the value and kind of goods or services procured; and
(c) a statement indicating the circumstances and conditions described in paragraph 1 that justify the use of limited tendering.
Article 10.14. Electronic Auctions
Where a procuring entity intends to conduct a covered procurement using an electronic auction, the entity shall provide each participant, before commencing the electronic auction, with:
(a) the automatic evaluation method, including the mathematical formula, that is based on the evaluation criteria set out in the tender documentation and that will be used in the automatic ranking or re-ranking during the auction;
(b) the results of any initial evaluation of the elements of its tender where the contract is to be awarded on the basis of the most advantageous tender; and
(c) any other relevant information relating to the conduct of the auction.
Article 10.15. Treatment of Tenders and Awarding of Contracts
Treatment of Tenders
1. A procuring entity shall receive, open, and treat all tenders under procedures that guarantee the fairness and impartiality of the procurement process and shall treat all tenders in confidence until at least the opening of the tenders.
2. A procuring entity shall not penalise any supplier whose tender is received after the time specified for receiving tenders if the delay is due solely to mishandling on the part of the procuring entity.
3. Where a procuring entity provides suppliers with opportunities to correct unintentional errors of form between the opening of tenders and the awarding of the contract, the procuring entity shall provide the same opportunities to all participating suppliers.
Awarding of Contracts
4. A procuring entity shall require that in order to be considered for an award, a tender shall be submitted in writing and shall, at the time of opening, comply with the essential requirements set out in the notices and tender documentation and be from a supplier that satisfies the conditions for participation.
5. Unless a procuring entity determines that it is not in the public interest to award a contract, it shall award the contract to the supplier that it has determined to be capable of fulfilling the term of the contract and based solely on the evaluation criteria specified in the notices and tender documentation, and that has submitted:
(a) the most advantageous tender; or
(b) where price is the sole criterion, the lowest price.
6. Where a procuring entity receives a tender with a price that is abnormally lower than the prices in other tenders submitted, it may verify with the supplier that it satisfies the conditions for participation and is capable of fulfilling the terms of the contract.
7. A procuring entity shall not use options, cancel a covered procurement, or terminate or modify awarded contracts in a manner that circumvents this Chapter.
Article 10.16. Disclosure of Information
Provision of Information to Parties
1. On request of the other Party, a Party shall promptly provide any information necessary to determine whether a procurement was conducted fairly, impartially, and in accordance with this Chapter, including information on the characteristics and relative advantages of the successful tender. In cases where release of the information would prejudice competition in future tenders or confidential information, the Party that receives the information shall not disclose it to any supplier, except after consulting with, and obtaining the agreement of, the Party that provided the information.
Non-Disclosure of Information
2. Notwithstanding any other provision of this Chapter, a procuring entity shall not provide information to particular suppliers that might prejudice fair competition between suppliers, except with the written authorization of the supplier that provided the information and as permitted by the Party's laws and procedures.
3. Nothing in this Agreement shall be construed to require a Party, including its procuring entities, authorities and review bodies, to disclose confidential information where disclosure:
(a) would impede law enforcement;
(b) might prejudice fair competition between suppliers;
(c) would prejudice the legitimate commercial interests of particular persons, including the protection of intellectual property; or
(d) would otherwise be contrary to the public interest.
Article 10.17. Transparency and Post-Award Information
Information Provided to Suppliers
1. A procuring entity shall promptly inform suppliers that have submitted tenders of its contract award decision. Subject to Article 10.16.2 and 10.16.3, a procuring entity shall, upon request, provide an unsuccessful supplier with the reasons that the procuring entity did not select that supplier's tender and the relative advantages of the successful supplier's tender.
2. Not later than 72 days after the award of each contract covered by this Chapter, a procuring entity shall publish a notice regarding that award according to the regulations and procedures of that Party.
Maintenance of Records
3. Each procuring entity shall, for a period of at least three years from the date it awards a contract, maintain:
(a) the documentation and reports of tendering procedures and contract awards relating to covered procurement, including the reports required under Article 10.13 and
(b) data that ensure the appropriate traceability of the conduct of covered procurement by electronic means.
Article 10.18. Domestic Review Procedures
1. Each Party shall provide a timely, effective, transparent, and non-discriminatory administrative or judicial review procedure through which a supplier may challenge:
(a) a breach of this Chapter; or
(b) when the supplier does not have a right to directly challenge a breach of this Chapter under the law of a Party, a failure to comply with a Party's measures implementing this Chapter.
2. The procedural rules for all challenges shall be in writing and made generally available.
3. In the event of a complaint by a supplier, arising in the context of covered procurement in which the supplier has, or had, an interest, that there has been a breach or a failure as referred to in paragraph 1, the Party of the procuring entity conducting the procurement shall encourage the procuring entity and the supplier to seek resolution of the complaint through consultations. The procuring entity shall accord impartial and timely consideration to any such complaint in a manner that is not prejudicial to the supplier's participation in ongoing or future procurement or its right to seek corrective measures under the administrative or judicial review procedure.
4. Each supplier shall be allowed a sufficient period of time to prepare and submit a challenge, which in no case shall be less than 10 days from the time when the basis of the challenge became known or reasonably should have become known to the supplier.