7. 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.
Article 9.5. Information on the Procurement System
1. Each Party shall:
(a) promptly publish any law, regulation, judicial decision, administrative ruling of general application, standard contract clause mandated by law or regulation and incorporated by reference in notices or tender documentation, and any procedure regarding covered procurement, and any modifications thereof, in an officially designated electronic or paper medium that is widely disseminated and remains readily accessible to the public; and
(b) provide an explanation thereof to the other Party on request.
2. Each Party shall list in Annex 9-H:
(a) the electronic or paper media in which the Party publishes the information described in paragraph 1; and
(b) the electronic or paper media in which the Party publishes the notices required by Article 9.6 (Notices), paragraph 8 of Article 9.8 (Qualification of Suppliers), and paragraph 2 of Article 9.15 (Transparency of Procurement Information).
3. Each Party shall promptly notify the Committee on Trade in Services, Investment and Government Procurement established pursuant to Article 16.2 (Specialised Committees) of any modification to the media of information listed in Annex 9-H.
Article 9.6. Notices Notice of Intended Procurement
1. For each covered procurement, a procuring entity shall publish a notice of intended procurement, which shall be directly accessible by electronic means, free of charge, through a single point of access, except in the circumstances described in Article 9.12 (Limited Tendering). The notice of intended procurement shall remain readily accessible to the public, at least until the expiration of the time-period indicated in the notice. The appropriate electronic medium shall be listed by each Party in its Section of Annex 9-H.
2. 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 their cost and terms of payment, if any;
(b) a description of 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;
(c) for recurring contracts, an estimate, if possible, of the timing of subsequent notices of intended procurement;
(d) a description of any options;
(e) the time-frame for delivery of goods or services or the duration of the contract;
(f) the procurement method that will be used and whether it will involve negotiation or electronic auction;
(g) where applicable, the address and any final date for the submission of requests for participation in the procurement;
(h) the address and the final date for the submission of tenders;
(i) the language or languages in which tenders or requests for participation may be submitted, if they may be submitted in a language other than an official language at the place where the procuring entity is located;
(j) a list and brief description of any conditions for participation of suppliers, including any requirements for specific documents or certifications to be provided by suppliers 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;
(k) where the procuring entity intends to select a limited number of qualified suppliers to be invited to tender pursuant to Article 9.8 (Qualification of Suppliers), the criteria that will be used to select those suppliers and, where applicable, any limitation on the number of suppliers that will be permitted to tender; and
(l) an indication that the procurement is covered by this Agreement.
Summary Notice
3. For each case of intended procurement, a procuring entity shall publish a summary notice that is readily accessible in one of the WTO languages at the same time as the publication of the notice of intended procurement. The notice shall contain at least the following information:
(a) the subject-matter of the procurement;
(b) the final date for the submission of tenders or, where applicable, any final date for the submission of requests for participation in the procurement or for inclusion on a multi-use list; and
(c) the address from which documents relating to the procurement may be requested.
Notice of Planned Procurement
4. Procuring entities are encouraged to publish by electronic means through the single point of access used for the publication of notices of intended procurement as early as possible in each fiscal year a notice regarding their future procurement plans (hereinafter referred to as a "notice of planned procurement"). That notice of planned procurement should include the subject-matter of the procurement and the planned date of the publication of the notice of intended procurement.
5. Procuring entities covered by Annexes 9-B or 9-C may use a notice of planned procurement as a notice of intended procurement, provided that the notice of planned procurement includes as much of the information referred to in paragraph 2 as is available and a statement that interested suppliers should express their interest in the procurement to the procuring entity.
Article 9.7. Conditions for Participation
1. Procuring entities shall limit the conditions for participation in a given procurement to those that are essential to ensure that a supplier has the legal, commercial, technical, and financial ability to undertake the relevant procurement.
2. In establishing the conditions for participation, procuring entities:
(a) shall not impose the condition that, in order for a supplier to participate in a procurement, the supplier has previously been awarded one or more contracts by a procuring entity of a Party, or that the supplier has prior experience in the territory of that Party; but
(b) may require relevant prior experience where essential to meet the requirements of the procurement.
3. In assessing whether a supplier satisfies the conditions for participation, procuring entities:
(a) shall evaluate the financial capacity and the 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; and
(b) shall base their evaluation on the conditions that they specified in advance in notices or tender documentation.
4. Where there is supporting evidence, a Party, including its procuring entities, may exclude a supplier on grounds such as:
(a) bankruptcy;
(b) false declarations;
(c) significant or persistent deficiencies in performance of any substantive requirement or obligation under a prior con- tract or contracts;
(d) final judgments in respect of serious crimes or other serious offences;
(e) professional misconduct or acts or omissions that adversely reflect upon the commercial integrity of the supplier; or
(f) failure to pay taxes.
Article 9.8. Qualification of Suppliers Registration Systems and Qualification Procedures
1. Each Party, including its procuring entities, may maintain a supplier registration system under which interested suppliers are required to register and provide certain information.
2. Each Party shall ensure that:
(a) its procuring entities make efforts to minimise differences in their qualification procedures; and
(b) where its procuring entities maintain registration systems, those procuring entities make efforts to minimise differences in their registration systems.
3. Neither Party, including its procuring entities, shall adopt or apply any registration system or qualification procedure with the purpose or the effect of creating unnecessary obstacles to the participation of suppliers of the other Party in its procurement.
Selective Tendering
4. Where a procuring entity intends to use selective tendering, that procuring entity shall:
(a) in the notice of intended procurement include at least the information in subparagraphs 2(a), (b), (f), (g), (j), (k) and (l) of Article 9.6 (Notices) and invite suppliers to submit a request for participation; and
(b) by the commencement of the time period for tendering, provide at least the information in subparagraphs 2(c), (d), (e), (h), and (i) of Article 9.6 (Notices) to the qualified suppliers that it notifies in accordance with subparagraph 3(b) of Article 9.10 (Time Periods).
5. Procuring entities shall allow all qualified suppliers to participate in a particular procurement, unless the procuring entity sets a limit in the notice of intended on the number of suppliers that will be permitted to tender and states the criteria for selecting the limited number of suppliers. In any case, the number of suppliers permitted to submit a tender shall be sufficient to ensure competition without affecting the operational efficiency of the procurement system.
6. Where the tender documentation is not made publicly available from the date of publication of the notice referred to in paragraph 4, the procuring entity shall ensure that those documents are made available at the same time to all the qualified suppliers that have been selected in accordance with paragraph 5.
Multi-Use Lists
7. Procuring entities may maintain a multi-use list of suppliers, provided that a notice inviting interested suppliers to apply for inclusion on the list is:
(a) published annually; and
(b) where published by electronic means, made available continuously, in the appropriate medium listed in Annex 9-H. 8. The notice provided for in paragraph 7 shall include:
(a) a description of the goods or 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 that a supplier satisfies the conditions;
(c) 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 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 use of the list; and
(e) an indication that the list may be used for procurement covered by this Agreement.
9. Notwithstanding paragraph 7, where a multi-use list will be valid for three years or less, procuring entities 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. Procuring entities shall allow suppliers to apply at any time for inclusion on a multi-use list and shall include on the list all qualified suppliers within a reasonably short time.
11. 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 relating thereto within the time period provided for in paragraph 2 of Article 9.10 (Time Periods), the 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 procuring entity has insufficient time to examine the request unless, in exceptional cases, due to the complexity of the procurement, the procuring entity is not able to complete the examination of the request within the time period allowed for the submission of tenders.
Annex 9-C Entities
12. Procuring entities covered under Annex 9-C may use a notice inviting suppliers to apply for inclusion on a multi-use list as a notice of intended procurement, provided that:
(a) the notice is published in accordance with paragraph 7 and includes the information in paragraph 8, as much of the information in paragraph 2 of Article 9.6 (Notices) as is available, and a statement that it constitutes a notice of intended procurement or that only the suppliers on the multi-use list will receive further notices of procurement covered by the multi-use list; and
(b) the procuring entity promptly provides to suppliers that have expressed an interest to the procuring entity in a given procurement, sufficient information to permit them to assess their interest in the procurement, including all remaining information required in paragraph 2 of Article 9.6 (Notices), to the extent such information is available.
13. Procuring entities covered under Annex 9-C may allow a supplier that has applied for inclusion on a multi-use list in accordance with paragraph 10 to tender in a given procurement, where there is sufficient time for the procuring entity to examine whether the supplier satisfies the conditions for participation.
Information on Procuring Entity Decisions
14. Procuring entities shall promptly inform any supplier that submits a request for participation or application for inclusion on a multi-use list of the procuring entity's decision with respect to the request.
15. Where a procuring entity rejects a supplier's request for participation or application for inclusion on a multi-use list, ceases to recognise a supplier as qualified, or removes a supplier from a multi-use list, that procuring entity shall promptly inform the supplier and, at the request of the supplier, promptly provide the supplier with a written explanation of the reasons for its decision.
Article 9.9. Technical Specifications and Tender Documentation Technical Specifications
1. Procuring entities shall not prepare, adopt, or apply any technical specification or prescribe any conformity assessment procedure with the purpose or the effect of creating unnecessary obstacles to international trade.
2. In prescribing the technical specifications for the goods or services being procured, procuring entities shall, where appropriate:
(a) set out 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 such exist; otherwise, on national technical regulations, recognised national standards, or building codes.
3. Where design or descriptive characteristics are used in the technical specifications, procuring entities should indicate, where appropriate, that they will consider tenders of equivalent goods or services that demonstrably fulfil the requirements of the procurement by including words such as âor equivalentâ in the tender documentation.
4. Procuring entities 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 procuring entity include words such as "or equivalent" in the tender documentation.
5. Procuring entities 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.
6. For greater certainty, each Party, including its procuring entities, may, in accordance with this Article, prepare, adopt, or apply technical specifications to promote the conservation of natural resources or protect the environment.
7. Where procuring entities lay down environmental characteristics in terms of performance or functional requirement, as referred to in paragraph 2(a), they may consider using the detailed specification or, if necessary, parts thereof, as defined by eco-labels existing within the Union and green labels existing in Singapore, provided that:
(a) those specifications are appropriate to define the characteristics of the supplies or services that are the object of the contract;
(b) the requirements of the label are drawn up on the basis of scientific information; and
(c) those specifications are accessible to all interested parties.
Tender Documentation
8. Procuring entities shall provide to suppliers tender documentation that includes all information necessary to permit suppliers to prepare and submit responsive tenders. 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 certification, plans, drawings, or instructional materials;
(b) any conditions for participation of suppliers, including a list of information and documents that suppliers are required to submit in connection with the conditions for participation;
(c) all evaluation criteria that the procuring entity will apply in the awarding of the contract and, except where price is the sole criterion, 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 and, where appropriate, the persons authorised 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, such as whether on paper or by electronic means; and
(h) any dates for the delivery of goods or the supply of services.
9. In establishing any delivery date for the goods or services being procured, procuring entities shall take into account such factors as the complexity of the procurement, the extent of subcontracting anticipated and the realistic time required for production, de-stocking and transport of goods from the point of supply or for supply of services.
10. Procuring entities may lay down environmental conditions relating to the performance of a procurement, provided that these are compatible with the rules established by this Chapter and are indicated in the notice of intended procurement of in another notice used as a notice of intended procurement (33) or tender documentation.
11. The evaluation criteria set out in the notice of intended procurement or in another notice used as a notice of intended procurement or tender documentation may include, among others, price and other cost factors, quality, technical merit, environmental characteristics, and terms of delivery.
12. Procuring entities shall promptly:
(a) make available tender documentation to ensure that interested suppliers have sufficient time to submit responsive tenders;
(b) provide, on request, the tender documentation to any interested supplier; and
(c) 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.
Modifications
13. Where, prior to the award of a contract, a procuring entity modifies the criteria or requirements set out in a notice of intended procurement or in another notice used as a notice of intended procurement or tender documentation provided to participating suppliers, or amends or reissues a notice or tender documentation, it shall transmit in writing all such modifications or amended or re-issued notices or tender documentation:
(a) to all suppliers that are participating at the time of the modification, amendment or re-issuance, where such suppliers are known to the procuring entity, and in all other cases, in the same manner as the original information was made available; and
(b) in adequate time to allow such suppliers to modify and re-submit amended tenders, as appropriate.
Article 9.10. Time Periods General
1. Procuring entities shall, consistent with their 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) the time necessary for transmitting tenders by non-electronic means from foreign as well as domestic points, where electronic means are not used.
Such time-periods, including any extension of the time periods, shall be the same for all interested or participating suppliers.
Deadlines
2. Procuring entities that use selective tendering shall establish that, in principle, the final date for the submission of requests for participation shall not be less than 25 days from the date of publication of the notice of intended procurement. Where a state of urgency duly substantiated by the procuring entity renders this time period impracticable, the time period may be reduced to not less than ten days.
3. Except as provided for in paragraphs 4, 5, 7 and 8, procuring entities shall establish that the final date for the submission of tenders shall not be less than 40 days from the date on which:
(a) in the case of open tendering, the notice of intended procurement is published; or
(b) in the case of selective tendering, the procuring entity notifies suppliers that they will be invited to submit tenders, whether or not it uses a multi-use list.
4. Procuring entities may reduce the time-period for tendering set out in paragraph 3 to not less than ten days where:
(a) the procuring entity published a notice of planned procurement under paragraph 4 of Article 9.6 (Notices) at least 40 days and not more than twelve months in advance of the publication of the notice of intended procurement, and the notice of planned procurement contains:
(i) a description of the procurement;
(ii) the approximate final dates for the submission of tenders or requests for participation;
(iii) a statement that interested suppliers should express their interest in the procurement to the procuring entity;
(iv) the address from which documents relating to the procurement may be obtained; and
(v) as much of the information that is required under paragraph 2 of Article 9.6 (Notices) for the notice of intended procurement, as is available;
(b) the procuring entity, for procurements of a recurring nature, indicated in an initial notice of intended procurement that subsequent notices will provide time periods for tendering based on this paragraph; or
(c) a state of urgency duly substantiated by the procuring entity has rendered the time period for tendering established in accordance with paragraph 3 impracticable.
5. Procuring entities may reduce the time period for tendering set out in paragraph 3 by five days for each one of the following circumstances:
(a) the notice of intended procurement is published by electronic means;
(b) all the tender documentation is made available by electronic means from the date of the publication of the notice of intended procurement; and
(c) the tenders can be received by electronic means by the procuring entity.
6. The use of paragraph 5, in conjunction with paragraph 4, shall in no case result in the reduction of the time period for tendering set out in paragraph 3 to less than ten days from the date on which the notice of intended procurement is published.
7. Notwithstanding any other provision in this Article, where a procuring entity purchases commercial goods or services, or any combination thereof, it may reduce the time period for tendering set out in paragraph 3 to not less than thirteen days, provided that it publishes by electronic means, at the same time, both the notice of intended procurement and the tender documentation. In addition, where the procuring entity also accepts tenders for commercial goods and services by electronic means, it may reduce the time period set out in paragraph 3 to not less than ten days.
8. Where a procuring entity covered under Annexes 9-B or 9-C has selected all or a limited number of qualified suppliers, the time period for tendering may be fixed by mutual agreement between the procuring entity and the selected suppliers. In the absence of agreement, the period shall not be less than ten days.
Article 9.11. Negotiations
1. Each Party may provide for its procuring entities to conduct negotiations:
(a) where the procuring entity has indicated its intent to conduct negotiations in the notice of intended procurement required under paragraph 2 of Article 9.6 (Notices); or
(b) where it appears from the evaluation that no one tender is obviously the most advantageous in terms of the specific evaluation criteria set out in the notice of intended procurement or in another notice used as a notice of intended procurement or tender documentation.
2. Procuring entities 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 in another notice used as a 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.