Article 8.57. Objectives
1. The Parties, recognising that electronic commerce increases trade opportunities in many sectors, agree on the importance of facilitating its use and development and the applicability of WTO rules to electronic commerce.
2. The Parties agree to promote the development of electronic commerce between them, in particular by cooperating on the issues raised by electronic commerce under the provisions of this Chapter. Within this context both Parties should avoid imposing unnecessary regulations or restrictions on electronic commerce.
3. The Parties recognise the importance of the free flow of information on the internet, while agreeing that this should not impair the rights of intellectual property owners, given the importance of protecting intellectual property rights on the internet.
4. The Parties agree that the development of electronic commerce must be fully compatible with international standards of data protection, in order to ensure the confidence of users of electronic commerce.
Article 8.58. Customs Duties
The Parties shall not impose customs duties on electronic transmissions.
Article 8.59. Electronic Supply of Services
For greater certainty, the Parties affirm that measures related to the supply of a service using electronic means falls within the scope of the obligations contained in the relevant provisions of this Chapter, subject to any exceptions applicable to such obligations.
Article 8.60. Electronic Signatures
1. The Parties shall take steps to facilitate the better understanding of each other's electronic signatures framework and, subject to relevant domestic conditions and legislation, to examine the feasibility of having a mutual recognition agreement on electronic signatures in the future.
2. In achieving the objectives of paragraph 1, each Party shall:
(a) facilitate, as much as possible, the representation of the other Party in available fora on electronic signatures organised formally or informally by its own competent authorities, by allowing the other Party to present its electronic signatures framework;
(b) encourage, as much as possible, the exchange of views on electronic signatures through dedicated seminars and expert meetings in areas such as security and interoperability; and
(c) contribute, as much as possible, to the other Party's efforts to study and analyse its own framework by making available relevant information.
Article 8.61. Regulatory Cooperation on Electronic Commerce
1. The Parties shall maintain a dialogue on regulatory issues raised by electronic commerce, which will, inter alia, address the following issues:
(a) the recognition of certificates of electronic signatures issued to the public and the facilitation of cross-border certification services;
(b) the liability of intermediary service providers with respect to the transmission or storage of information;
(c) the treatment of unsolicited electronic commercial communications;
(d) the protection of consumers; and
(e) any other issue relevant for the development of electronic commerce.
2. This cooperation may take the form of an exchange of information on the Partiesâ respective legislation on these issues as well as on the implementation of such legislation.
Section G. GENERAL PROVISIONS
Article 8.62. General Exceptions
Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination against the other Party where like conditions prevail, or a disguised restriction on establishment or cross-border supply of services, nothing in this Chapter shall be construed to prevent the adoption or enforcement by a Party of measures:
(a) necessary to protect public security or public morals or to maintain public order (31);
(b) necessary to protect human, animal or plant life or health;
(c) relating to the conservation of exhaustible natural resources if such measures are applied in conjunction with restrictions on domestic entrepreneurs or on the domestic supply or consumption of services;
(d) necessary for the protection of national treasures of artistic, historic or archaeological value;
(e) necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Chapter, including those relating to:
(i) the prevention of deceptive and fraudulent practices or to deal with the effects of a default on contracts;
(ii) the protection of the privacy of individuals in relation to the processing and dissemination of personal data and the protection of confidentiality of individual records and accounts; or
(iii) safety; or
(f) inconsistent with Article 8.6 (National Treatment) and Article 8.11 (National Treatment), provided that the difference in treatment is aimed at ensuring the effective or equitable imposition or collection of direct taxes in respect of economic activities, entrepreneurs or service suppliers of the other Party (32).
Article 8.63. Review
With a view to further deepening liberalisation and eliminating remaining restrictions and ensuring an overall balance of rights and obligations, the Parties shall review this Chapter and their Schedules of Specific Commitments no later than three years after the entry into force of this Agreement, and at regular intervals thereafter. As a result of such review, the Committee on Trade in Services, Investment and Government Procurement established pursuant to Article 16.2 (Specialised Committees) may decide to amend the relevant Schedules of Specific Commitments.
Article 8.64. Committee on Trade In Services, Investment and Government Procurement
1. The Committee on Trade in Services, Investment and Government Procurement shall be responsible for the effective implementation of this Chapter and to that end it shall:
(a) regularly review the implementation of this Chapter by each Party and the Schedules of Specific Commitments in accordance with Article 8.63 (Review);
(b) as appropriate, take decisions pursuant to Article 8.63 (Review) amending the Appendices to Annexes 8-A and 8-B; an
(c) consider any matter in relation to this Chapter as the Parties may agree.
2. The responsibilities of the Committee on Trade in Services, Investment and Government Procurement in relation to Chapter Nine (Government Procurement) are set out in Article 9.19 (Responsibilities of the Committee).
Chapter NINE. GOVERNMENT PROCUREMENT
Article 9.1. Definitions
For the purposes of this Chapter:
(a) "commercial goods and services" means goods and services of a type generally sold or offered for sale in the commercial marketplace to, and customarily purchased by, non-governmental buyers for non-governmental purposes,
(b) "competitive activity" means, in the case of the Union:
(i) an activity, performed within the territory of a Member State of the Union, which is directly exposed to competition in markets to which access is not restricted; and
(ii) a competent authority in the Union has adopted a decision establishing the applicability of paragraph (i);
for the purposes of subparagraph (b)(i), the question of whether an activity is directly exposed to competition shall be decided on the basis of the characteristics of the goods or services concerned, the existence of alternative goods or services, and their prices and the actual or potential presence of more than one supplier of the goods or services in question;
(c) "construction services" means a service that has as its objective the realisation by whatever means of civil or building works as defined in Division 51 of the Provisional UN Central Product Classification (CPC);
(d) "corrective action" means, in the context of domestic review procedures, either setting aside or ensuring the setting aside of decisions that were taken unlawfully by a procuring entity, including the removal of discriminatory technical, economic or financial specifications in the invitation to tender, the contract documents or any other document relating to the tendering procedure;
(e) "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;
(f) "in writing" or "written" means any worded or numbered expression that can be read, reproduced, and later communicated; it may include electronically transmitted and stored information;
(g) "juridical person" is understood as provided for in paragraph (b) of Article 8.2 (Definitions);
(h) "Union juridical person" or a "Singapore juridical person" is understood as provided for in paragraph (c) of Article 8.2 (Definitions);
(i) "limited tendering" means a procurement method where the procuring entity contacts a supplier or suppliers of its choice;
(j) "locally established" means a juridical person which is established in one Party and which is owned or controlled by natural or juridical persons of the other Party;
a juridical person is:
(i) "owned" by natural or juridical persons of the other Party if more than 50 per cent of the equity interest in that juridical person is beneficially owned by persons of the other Party; and
(ii) "controlled" by natural or juridical persons of the other Party if such persons have the power to name a majority of the directors of that juridical person or otherwise to legally direct its actions;
(k)"measure" means any law, regulation, procedure, administrative guidance or practice, or any action of a procuring entity relating to a covered procurement;
(l) "multi-use list" means a list of suppliers that a procuring entity has determined satisfies the conditions for participation in that list, and that the procuring entity intends to use more than once;
(m) "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;
(n) "offsets" 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 similar actions or requirements;
(o) "open tendering" means a procurement method where all interested suppliers may submit a tender;
(p) "privatised" means, in the case of Singapore, an entity that has been reconstituted from a procuring entity or part thereof to be a legal person acting in accordance with commercial considerations in the procurement of goods and that is no longer entitled to exercise governmental authority, even though the government possesses holdings thereof or appoints members of the Board of Directors thereto;
for greater certainty, where the government of a Party possesses holdings thereof or appoints a government official to the board of directors of a privatised entity, that entity is deemed to act in accordance with commercial consider- ations in its purchase of goods and services, such as with regard to the availability, price and quality of the goods and services if the government or the government official so appointed does not directly or indirectly influence or direct the decisions of the board of directors in relation to the entity's procurement of goods and services;
(q) "procuring entity" means an entity covered under Annexes 9-A, 9-B or 9-C;
(r) "qualified supplier" means a supplier that a procuring entity recognises as having satisfied the conditions for participation;
(s) "Revised GPA" means the text of the Agreement on Government Procurement, as amended by the Protocol Amend- ing the Agreement on Government Procurement, done at Geneva on 30 March 2012;
(t) "selective tendering" means a procurement method where only qualified suppliers are invited by the procuring entity to submit a tender;
(u) "services" includes construction services, unless otherwise specified;
(v) "standard" means a document that has been approved by a recognised body and 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;
(w) "supplier" means a person or group of persons of either Party, as applicable, that provides or could provide goods or services; and
(x) "technical specification" means a tendering requirement that:
(i) 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
(ii) addresses terminology, symbols, packaging, marking, or labelling requirements, as they apply to a good or service.
Article 9.2. Scope and Coverage Application of this Chapter
1. This Chapter applies to any measure regarding covered procurement, whether or not it is conducted exclusively or partially by electronic means.
2. For the purposes of this Chapter, "covered procurement" means procurement for governmental purposes:
(a) of goods, services, or any combination thereof:
(i) as specified in each Party's Section of Annexes 9-A to 9-G; 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, lease, and rental or hire purchase with or without an option to buy, and any public-private partnership contracts as defined in Annex 9-I;
(c) for which the value, as estimated in accordance with paragraphs 6 to 8, equals or exceeds the relevant threshold specified in Annexes 9-A to 9-G at the time of publication of a notice in accordance with Article 9.6 (Notices);
(d) by a procuring entity; and
(e) that is not otherwise excluded from coverage in paragraph 3 or in a Party's Section of Annexes 9-A to 9-G.
3. Except where provided otherwise in Annexes 9-A to 9-G, this Chapter does not apply to:
(a) the acquisition or rental of land, existing buildings, or other immovable property or the rights thereon;
(b) non-contractual agreements or any form of assistance that a Party 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 sale, redemption and distribution of public debt, including loans and government bonds, notes and other securities;
(d) public employment contracts;
(e) procurement conducted:
(i) for the specific purpose of providing international assistance, including development aid;
(ii) 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
(iii) under the particular procedure or condition of an international organisation, or funded by international grants, loans, or other assistance, where the applicable procedure or condition would be inconsistent with this Chapter.
4. Each Party shall specify the following information in Annexes 9-A to 9-G:
(a) in Annex 9-A, the central government entities whose procurement is covered by this Chapter;
(b) in Annex 9-B, the sub-central entities whose procurement is covered by this Chapter;
(c) in Annex 9-C, all other entities whose procurement is covered by this Chapter;
(d) in Annex 9-D, the goods covered by this Chapter;
(e) in Annex 9-E, the services, other than construction services, covered by this Chapter;
(f) in Annex 9-F, the construction services covered by this Chapter; and
(g) in Annex 9-G, any general notes.
5. Where a procuring entity, in the context of covered procurement, requires persons who are not listed in Annexes 9-A to 9-C to procure in accordance with particular requirements, Article 9.4 (General Principles) 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, and interest; and
(ii) where the procurement provides for the possibility of options, the total value of such options.
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 (hereafter referred to as "recurring procurements"), the calculation of the estimated maximum total value shall be based on:
(a) the value of recurring procurements of the same type of good or service awarded during the preceding twelve months or the procuring entity's preceding fiscal year, adjusted where possible to take into account anticipated changes in the quantity or value of the good or service being procured over the subsequent twelve months; or
(b) the estimated value of recurring procurements of the same type of good or service to be awarded during the twelve months subsequent to the initial contract award or the procuring entity's fiscal year.
8. In the case of procurement by lease, rental, or hire purchase of goods or services, or procurement for which a total price is not specified, the basis for valuation shall be:
(a) in the case of a fixed-term contract:
(i) where the term of the contract is twelve months or less, the total estimated maximum value for its duration; or
(ii) where the term of the contract exceeds twelve months, the total estimated maximum value, including any estimated residual value;
(b) where the contract is for an indefinite period, the estimated monthly instalment multiplied by 48; and
(c) where it is not certain whether the contract is to be a fixed-term contract, subparagraph (b) shall be used.
Article 9.3. Security and General Exceptions
1. Nothing in this Chapter shall be construed as preventing a Party from taking any action or from not disclosing any information that it considers necessary for the protection of its essential security interests relating 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 international trade, nothing in this Chapter shall be construed to prevent any 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.
Article 9.4. General Principles
National Treatment and Non-Discrimination
1. With respect to any measure regarding covered procurement, each Party, including its procuring entities, shall immediately and unconditionally accord to the goods and services of the other Party and to the suppliers of the other Party treatment no less favourable than the treatment 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 of the other Party less favourably than another locally established supplier on the basis of degree of foreign affiliation or ownership; 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. When conducting covered procurement by electronic means, procuring entities 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) maintain mechanisms that ensure the integrity of requests for participation and tenders, including establishment of the time of receipt and the prevention of inappropriate access.
Conduct of Procurement
4. Procuring entities 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.
Rules of Origin
5. For the purposes of covered procurement, neither Party may apply rules of origin to goods or services imported from or supplied from the other Party that are different from the rules of origin 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.
Offsets
6. With regard to covered procurement, a Party, including its procuring entities, shall not seek, take account of, impose, or enforce any offsets. Measures Not Specific to Procurement