Article 9.12. Limited Tendering
1. Provided that they do not use this provision for the purpose of avoiding competition among suppliers or in a manner that discriminates against suppliers of the other Party or protects domestic suppliers, procuring entities may use limited tendering and may choose not to apply Article 9.6 (Notices), Article 9.7 (Conditions for Participation), Article 9.8 (Qualification of Suppliers), paragraphs 8 to 13 of Article 9.9 (Technical Specifications and Tender Docu- mentation), Article 9.10 (Time Periods), Article 9.11 (Negotiations), Article 9.13 (Electronic Auctions), and Article 9.14 (Treatment of Tenders and Awarding of Contracts) only under any of the following circumstances:
(a) 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 have been collusive;
provided that the procuring entity does not substantially modify the requirements set out in the tender documentation;
(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 and services that were not included in the initial procurement where a change of supplier for such additional goods and services:
(i) 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) 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 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 at acceptable quality standards, but does not include quantity production, supply for the purpose of establishing commercial viability, or the recovery of 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; and
(h) where a contract is awarded to a winner of a design contest, provided that:
(i) the contest has been organised 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.
2. Procuring entities shall prepare a report in writing on each contract awarded under paragraph 1. The report shall include the name of the procuring entity, the value and kind of goods or services procured, and a statement indicating the circumstances and conditions described in paragraph 1 that justified the use of limited tendering.
Article 9.13. Electronic Auctions
Where a procuring entity intends to conduct a covered procurement using an electronic auction, the procuring 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 9.14. Treatment of Tenders and Awarding of Contracts Treatment of Tenders
1. Procuring entities shall receive, open, and treat all tenders in accordance with procedures that guarantee the fairness and impartiality of the procurement process, and the confidentiality of tenders.
2. Procuring entities shall not penalise any supplier whose tender is received after the time specified for receiving tenders if the delay was due solely to mishandling on the part of the procuring entity.
3. Where a procuring entity provides a supplier with an opportunity to correct unintentional errors of form between the opening of tenders and the awarding of the contract, the procuring entity shall provide the same opportunity to all participating suppliers.
Awarding of Contracts
4. To be considered for an award, a tender shall have been submitted in writing and shall, at the time of opening, comply with the essential requirements set out in the notices and tender documentation, and shall 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, the procuring entity shall award the contract to the supplier that the procuring entity has determined to be capable of fulfilling the terms of the contract and that, based solely on the evaluation criteria specified in the notices and tender documentation, 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, and whether the price takes into account the grant of subsidies.
7. Where a procuring entity establishes that a tender is abnormally low because the supplier has obtained. subsidies, it may reject the tender on that ground alone only after having consulted with the supplier and the latter is unable to prove, within a sufficient period fixed by the procuring entity, that the subsidy in question was granted in compliance with the disciplines relating to subsidies laid down in this Agreement.
8. A procuring entity shall not use options, cancel a procurement, or modify awarded contracts, in a manner that circumvents the obligations under this Chapter.
Article 9.15. Transparency of Procurement InformationInformation Provided to Suppliers
1. Procuring entities shall promptly inform participating suppliers of the procuring entity's contract award. decisions and, upon the request of a supplier, shall do so in writing. Subject to paragraphs 2 and 3 of Article 9.16 (Disclosure of Information), procuring entities shall, upon request, provide an unsuccessful supplier with an explanation of the reasons why the procuring entity did not select its tender and the relative advantages of the successful supplier's tender.
Publication of Award Information
2. Not later than 72 days after the award of each contract covered by this Chapter, the procuring entity shall publish a notice in the appropriate paper or electronic medium listed in Annex 9-H. Where the procuring entity publishes the notice only in an electronic medium, the information shall remain readily accessible for a reasonable period of time. The notice shall include at least the following information:
(a) a description of the goods or services procured;
(b) the name and address of the procuring entity;
(c) the name and address of the successful supplier;
(d) the value of the successful tender or the highest and lowest offers taken into account in the award of the contract;
(e) the date of award; and
(f) the type of procurement method used, and in cases where limited tendering was used pursuant to Article 9.12 (Limited Tendering), a description of the circumstances justifying the use of limited tendering.
Maintenance of Documentation, Reports, and Electronic Traceability
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 9.12 (Limited Tendering); and
(b) data that ensure the appropriate traceability of the conduct of covered procurement by electronic means.
Collection and Report of Statistics
4. Each Party agrees to communicate to the other Party the available and comparable statistical data relevant to the procurement covered by this Chapter.
Article 9.16. Disclosure of Information Provision of Information to Parties
1. Upon the request of a Party, the other 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, the Party that receives that information shall not disclose such information to any supplier, except after consultation with, and the agreement of, the Party that provided the information.
Non-Disclosure of Information
2. Notwithstanding any other provision of this Chapter, a Party, including its procuring entities, shall not provide to any particular supplier information that might prejudice fair competition between suppliers.
3. Nothing in this Chapter shall be construed as requiring 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 9.17. 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) where the supplier does not have the right to challenge a breach of this Chapter directly under the domestic law of that Party, a failure to comply with that Party's measures implementing this Chapter,
arising in the context of a covered procurement in which the supplier has, or has had, an interest. In any case, each Party shall ensure that the review body, upon a challenge by a supplier, can examine decisions taken by their respective procuring entities on whether a particular procurement falls within the procurement that is covered by this Chapter.
The procedural rules for all challenges shall be in writing and made generally available through electronic means or a paper medium.
2. In the event of a complaint by a supplier, that there has been a breach or a failure as referred to in paragraph 1 arising in the context of covered procurement in which the supplier has, or has had, an interest, 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 on-going or future procurement or to its right to seek corrective measures under the administrative or judicial review procedure.
3. Each supplier shall be allowed a sufficient period of time to prepare and submit a challenge, which in no case shall be Jess than ten days from the time when the basis of the challenge became known to the supplier or reasonably should have become known to the supplier.
4. Each Party shall establish or designate at least one impartial administrative or judicial authority that is independent of its procuring entities for the purpose of receiving and reviewing challenges by suppliers arising in the context of covered procurements.
5. Where a body other than an authority referred to in paragraph 4 initially reviews a challenge, the relevant Party shall ensure that the supplier may appeal the initial decision to an impartial administrative or judicial authority that is independent of the procuring entity whose procurement is the subject of the challenge.
6. Each Party shall ensure that a review body that is not a court shall have its decision subject to judicial review or have procedures that provide that:
(a) the procuring entity shall respond in writing to the challenge and disclose all relevant documents to the review body;
(b) the participants to the proceedings (hereinafter referred to as âparticipants) shall have the right to be heard prior to the decision of the review body on the challenge;
(c) the participants shall have the right to be represented and accompanied;
(d) the participants shall have access to all proceedings;
(e) the participants shall have the right to request that the proceedings take place in public and that witnesses may be presented; and
(f) the review body shall make its decisions or recommendations, in a timely fashion, in writing, and shall include an explanation of the basis for each decision or recommendation.
7. Each Party shall adopt or maintain procedures that provide for rapid interim measures to preserve the supplier's opportunity to participate in the procurement. Such interim measures may result in suspension of the procurement process. The procedures may provide that overriding adverse consequences for the interests concerned, including the public interest, may be taken into account when deciding whether such measures should be applied. Just cause for not acting shall be provided in writing.
8. Each Party shall provide that where a review body has determined that there has been a breach or a failure as referred to in paragraph 1, the review body may impose corrective action or grant compensation for the loss or dam- ages suffered, which may be limited to either the costs for the preparation of the tender or the costs relating to the challenge. Where a contract has already been awarded, the Parties may provide that corrective action is not available.
Article 9.18. Modification and Rectification of Coverage Notification of Proposed Modification
1. Each Party shall notify the other Party of any proposed rectification of Annexes 9-A to 9-I, any transfer of an entity from one of those Annexes to another, any withdrawal of an entity from those Annexes, or any other modification to those Annexes (such acts collectively referred hereinafter to as a "modification".
2. For any proposed withdrawal by a Party of a procuring entity from Annexes 9-A to 9-C on the grounds that government control or influence over the procuring entityâs covered procurement has been effectively eliminated, the Party proposing the modification (hereinafter referred to as "modifying Party") shall include in the notification evidence that such government control or influence has been effectively eliminated. Government control or influence over the covered procurement of entities covered under Annex 9-C is deemed to be effectively eliminated if:
(a) in the case of the Union, the procuring entity performs a competitive activity; and
(b) in the case of Singapore, the procuring entity has been privatised.
Where government control or influence over the covered procurement of a procuring entity of a Party has been effectively eliminated, the other Party shall not be entitled to compensatory adjustments.
3. For any other proposed modification, the modifying Party shall include in the notification information as to the likely consequences of the change for the coverage provided in this Chapter. Where the modifying Party proposes to make minor amendments or technical rectifications of a purely formal nature not affecting covered procurement, it shall notify these modifications at least every two years.
Resolution of Objection
4. Where the other Party (hereinafter referred to as âobjecting Party) objects to the notification by the modifying Party, the Parties shall seek to resolve the objection through consultations, including if necessary, consultations at the Committee on Trade in Services, Investment and Government Procurement established pursuant to Article 16.2 (Specialised Committees). In such consultations, the Parties shall consider:
(a) evidence pertaining to the effective elimination of government control or influence over an entity's covered procurement in the case of a notification under paragraph 2;
(b) evidence that the proposed modification does not affect coverage in the case of a notification under paragraph 3; and
(c) any claims relating to the need for compensatory adjustments arising from modifications notified according to paragraph 1 or to the level of such adjustments. Such adjustments may consist either of the compensatory expansion of coverage by the modifying Party or of a withdrawal of equivalent coverage by the objecting Party, in both cases with a view to maintaining a balance of rights and obligations and a comparable level of mutually agreed coverage provided in this Chapter.
5. The Parties may have recourse to the dispute settlement mechanism under Chapter Fourteen (Dispute Settlement) where the objecting Party, after consultations under paragraph 4, considers that one or more of the following situations exist:
(a) in the case of subparagraph 4(a), government control or influence over an entity's covered procurement has not been effectively eliminated;
(b) in the case of subparagraph 4(b), a modification does not meet the criteria in paragraph 3 and which affects coverage, and should be subject to compensatory adjustments; or
() in the case of subparagraph 4(c), compensatory adjustments proposed during the consultation between the Parties are not adequate to maintain a comparable level of mutually agreed coverage.
Implementation
6. A proposed modification shall only become effective where:
(a) the objecting Party has not submitted a written objection to the proposed modification to the modifying Party within 45 days of the date of the notification of the proposed modifications,
(b) the objecting Party has notified the modifying Party of the withdrawal of its objection;
(c) the Parties have reached an agreement after due consultations under paragraph 4; or
(d) the objection has been resolved through the dispute settlement mechanism under paragraph 5.
Article 9.19. Responsibilities of the Committee
1. In the Committee on Trade in Services, Investment and Government Procurement established pursuant to Article 16.2 (Specialised Committees), the Parties may:
(a) adopt modalities for reporting statistical data pursuant to paragraph 4 of Article 9.15 (Transparency of Procurement Information);
(b) review pending notifications of modifications to coverage and endorse updates to the list of entities in Annexes 9-A to 9-C;
(c) endorse compensatory adjustments resulting from modifications affecting coverage,
(d) revise, where required, indicative criteria that demonstrate the effective elimination of government control or influence over an entity's covered procurement;
(e) adopt criteria for deciding over the level of compensatory adjustments of coverage;
(f) consider issues regarding government procurement that are referred to it by a Party;
(g) exchange information relating to government procurement opportunities in each Party, including those at sub-central levels; and
(b) discuss any other matters related to the operation of this Chapter.
2. In the Committee on Trade in Services, Investment and Government Procurement established pursuant to Article 16.2 (Specialised Committees), the Parties may take any decision required for the purposes of subparagraphs (a) to (h).
Article 9.20. Adjustment to GPA Provisions
If the Revised GPA is amended or superseded by another agreement, the Parties shall amend this Chapter by decision in the Committee on Trade in Services, Investment and Government Procurement established pursuant to Article 16.2 (Specialised Committees), as appropriate.
Chapter TEN. INTELLECTUAL PROPERTY
Article 10.1. Objectives
1. The objectives of this Chapter are to:
(a) facilitate the production and commercialisation of innovative and creative products and the provision of services between the Parties; and
(b) increase the benefits from trade and investment through the adequate and effective level of protection of intellectual property rights and the provision of measures for the effective enforcement of such rights.
2. The objectives and principles set forth in Part I of the TRIPS Agreement, in particular in Article 7 (Objectives) and Article 8 (Principles) shall apply to this Chapter, mutatis mutandis.
Section A. PRINCIPLES
Article 10.2. Scope and Definitions
1. The Parties recall the commitments under the international treaties dealing with intellectual property, including the TRIPS Agreement and the Paris Convention for the Protection of Industrial Property of 20 March 1883, as revised at Stockholm on 15 July 1967 (hereinafter referred to as the "Paris Convention"). The provisions of this Chapter shall complement the rights and obligations of the Parties under the TRIPS Agreement and other international treaties in the field of intellectual property to which they both are parties.
2. For the purposes of this Chapter, "intellectual property rights" means:
(a) all categories of intellectual property that are the subject of Sections 1 to 7 of Part Il of the TRIPS Agreement namely:
(i) copyright and related rights;
(ii) patents (34);
(iii) trademarks;
(iv) designs;
(v) layout-designs (topographies) of integrated circuits;
(vi) geographical indications;
(vii) protection of undisclosed information; and
(b) plant variety rights.
Article 10.3. Exhaustion
Each Party shall be free to establish its own regime for the exhaustion of intellectual property rights subject to the relevant provisions of the TRIPS Agreement.
Section B. STANDARDS CONCERNING INTELLECTUAL PROPERTY RIGHTS
Subsection A. COPYRIGHT AND RELATED RIGHTS
Article 10.4. Protection Granted
The Parties shall comply with the rights and obligations set out in the Berne Convention for the Protection of Literary and Artistic Works of 9 September 1886 (as last revised at Paris on July 24, 1971), the WIPO Copyright Treaty, adopted in Geneva on 20 December 1996, the WIPO Performances and Phonograms Treaty, adopted in Geneva on 20 December 1996, and the TRIPS Agreement (35). The Parties may provide for the protection of performers, producers of phonograms and broadcasting organisations in accordance with the relevant provisions of the International Conven- tion for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, done at Rome on 26 October 1961.
Article 10.5. Term of Protection
1. Each Party shall provide that, where the term of protection of a work is to be calculated on the basis of the life of the author, the term shall be not less than the life of the author and 70 years after the author's death.
2. In the case of a work of joint authorship, the term referred to in paragraph 1 shall be calculated from the death of the last surviving author.
3. The term of protection of cinematographic works (36) shall be not less than 70 years after the work has been made available to the public with the consent of the author or, failing such an event within 50 years of the making of the work, at least 70 years after the making of the work (37).