Article 7.5. Publication of Procurement Information
1. Each Party shall promptly publish any measure of general application regarding covered procurement and any modification to this information, in the appropriate publications referred to in Appendix 2 of Annex XX (General Notes), including officially designated electronic media.
2. Each Party shall, on request, provide to another Party an explanation relating to such information.
Article 7.6. Publication of Notices
Notice of Intended Procurement
1. For each covered procurement, a procuring entity shall publish a notice inviting suppliers to submit tenders, or where appropriate, applications for participation for that procurement, except in the circumstances described in paragraph 8 of Article 7.10 (Tendering Procedures). The notice shall be published in the electronic or paper media listed in Appendix 2 to Annex XX (General Notes), and each such notice shall be accessible during the entire period established for tendering for the relevant procurement.
2. Except as otherwise provided for in this Chapter, each notice of intended procurement shall include:
(a) a description of the intended procurement;
(b) the procurement method;
(c) any conditions that suppliers must fulfill to participate in the procurement;
(d) the name of the entity issuing the notice;
(e) the address and contact where suppliers may obtain all documents relating to the procurement;
(f) where applicable, the address and any final date for the submission of requests for participation in the procurement;
(g) the address and the final date for the submission of tenders;
(h) the dates for delivery of the goods or services to be procured or the duration of the contract; and
(i) an indication that the procurement is covered by this Chapter.
3. Entities shall publish the notices in a timely manner through means which offer the widest possible and non-discriminatory access to the interested suppliers of the Parties. These means shall be accessible free of charge through a single point of access specified in Appendix 2 to Annex XX (General Notes)
Notice of Planned Procurement
4. Each Party shall encourage its procuring entities to publish in an electronic medium, listed in Appendix 2 to Annex XX (General Notes), as early as possible in the fiscal year, information regarding the entity's future procurement plans. Such notices should include the subject matter of the procurement and the planned date of the publication of the notice of intended procurement.
Article 7.7. Conditions for Participation
1. In assessing whether a supplier satisfies the conditions for participation, a Party, including its procuring entities:
(a) shall limit such conditions to those that are essential to ensure that a supplier has the legal and financial capacities and the commercial and technical abilities to undertake the relevant procurement and evaluate those capacities and abilities on the basis of that supplier's business activities both inside and outside the territory of the Party of the procuring entity;
(b) shall base its determination solely on the conditions that the procuring entity has specified in advance in notices or tender documentation;
(c) may 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 the given Party;
(d) may require relevant prior experience where essential to meet the requirements of the procurement; and
(e) allow all domestic suppliers and suppliers of another Party that satisfy the conditions for participation to be recognised as qualified suppliers and to participate in the procurement.
2. 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 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 upon the commercial integrity of the supplier; or
(f) failure to pay taxes.
Registration Systems and Qualification Procedures
3. A Party, including its procuring entities, may maintain a supplier registration system under which interested suppliers are required to register and provide certain information.
4. Procuring entities shall not 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 another Party in its procurement.
5. A procuring entity shall promptly communicate to any supplier that has applied for qualification its decision on whether that supplier is qualified. Where an entity rejects an application for qualification or ceases to recognise a supplier as qualified, that entity shall, on request of the supplier, promptly provide it a written explanation.
Multi-Use Lists
6. A procuring entity may establish or maintain a multi-use list of suppliers, provided that a notice inviting interested suppliers to apply for inclusion on the list is published in the appropriate medium listed in Appendix 2 of Annex XX (General Notes).
7. The notice provided for in paragraph 6 shall include:
(a) a description of the goods or services, or categories thereof, for which the list may be used;
(b) any deadlines for submission of applications for inclusion on the list;
(c) the conditions for participation to be satisfied by suppliers and the methods that the procuring entity will use to verify a supplier's satisfaction of the conditions;
(d) the name and address of the procuring entity and other information necessary to contact the entity and obtain all relevant documents relating to the list;
(e) 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
(f) an indication that the list may be used for procurement covered by this Chapter.
8. A procuring entity 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.
Article 7.8. Tender Documentation and Technical Specification
Tender Documentation
1. A procuring entity 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 therewith;
(c) all evaluation criteria to be considered 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 receipt 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, e.g., paper or electronic means; and
(h) any dates for the delivery of goods or the supply of services or the duration of the contract.
2. Where contracting entities do not offer free direct access to the entire tender documents and any supporting documents by electronic means, entities shall make promptly available the tender documentation at the request of any interested supplier of the Parties.
Technical Specifications
3. A procuring entity 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 between the Parties.
4. 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 such exist or otherwise, on national technical regulations, recognised national standards or building codes.
5. A procuring entity may not prescribe any technical specifications that require or refer to a particular trademark or trade name, patent, copyright, design or 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, words such as "or equivalent" are also included in the tender documentation.
6. 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.
7. For greater certainty, a 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.
Modifications
8. Where, prior to the award of a contract, a procuring entity modifies the criteria or technical requirements set out in a notice 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 notice or tender documentation:
(a) to all suppliers that are participating at the time the information is amended, if known, and in all other cases, in the same manner as the original information; and
(b) in adequate time to allow such suppliers to modify and re-submit amended tenders, as appropriate.
Article 7.9. Time
Limits A procuring entity shall provide suppliers sufficient time to submit applications to participate in a procurement and prepare and submit responsive tenders, taking into account the nature and complexity of the procurement. Each Party shall apply time limits according to the conditions specified in Appendix 3 of Annex XX (General Notes).
Article 7.10. Tendering Procedures
1. Entities shall award their public contracts by open, selective or limited tendering procedures according to their national legislation in compliance with this Chapter and in anon-discriminatory manner.
Selective Tendering
2. "Selective tendering" means a procurement method whereby only qualified suppliers are invited by the procuring entity to submit a tender;
3. Where a procuring entity intends to use selective tendering, the entity shall:
(a) include in the notice of intended procurement at least the information specified in subparagraphs 2 (a), (b), (c), (d), (e), (f) and (i) of Article 7.6 (Publication of Notices) and invite suppliers to submit a request for participation; and
(b) provide, by the commencement of the time-period for tendering, at least the information foreseen in subparagraphs 2 (g) and (h) of Article 7.6 (Publication of Notices) to the qualified suppliers that it notifies as specified in paragraph 2 of Appendix 3 to Annex XX (General Notes).
4. A procuring entity shall recognise as qualified suppliers such domestic suppliers and suppliers of another Party that meet the conditions for participation in a particular procurement, unless the procuring entity states in the notice of intended procurement or, where publicly available, in the tender documentation, any limitation on the number of suppliers that will be permitted to tender and the criteria for selecting the limited number of suppliers.
5. Where the tender documentation is not made publicly available from the date of publication of the notice referred to in paragraph 4, procuring entities shall ensure that those documents are made available at the same time to all the qualified suppliers selected in accordance with paragraph 5.
6. Entities maintaining permanent lists of qualified suppliers may select suppliers to be invited to tender from among those listed, under the conditions foreseen in Article 7.6 (Publication of Notices)
Limited Tendering
7. Provided that it does not use this provision for the purpose of avoiding competition among suppliers or in a manner that discriminates against suppliers of another Party or protects domestic suppliers, a procuring entity may use limited tendering and may choose not to apply Articles 7.6 (Publication of Notices), 7.7 (Conditions for Participations), 7.8 (Tender Documentation and Technical Specification), 7.9 (Time Limits), 7.12 (Electronic Auctions), 7.13 (Negotiations) and 7.14 (Opening of Tenders and Contract Awards) only under the following circumstances:
(a) provided that the requirements of the tender documentation are not substantially modified where:
(i) no tenders were submitted, or no supplier 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;
(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 a change of supplier for such additional goods or 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 cannot be obtained in time using an open or selective tendering procedure, and the use of such procedures would result in serious injury to the procuring entity;
(e) for purchases made on a commodity market;
(f) where a procuring entity procures prototypes or a first product or service which are developed at its request in the course of, and for, a particular contract for research, experiment, study or original development;
(g) or 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, public auction or bankruptcy, but not for routine purchases from regular suppliers; or
(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.
8. A procuring entity shall prepare a report in writing on each contract awarded under paragraph 7 of this Article. Each such 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 7 of this Article that justified the use of limited tendering.
Article 7.11. Information Technology
The Parties shall, to the extent possible, endeavour to use electronic means of communication to permit efficient dissemination of information on government procurement, particularly as regards tender opportunities offered by entities, while respecting the principles of transparency and non-discrimination.
Article 7.12. 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 7.13. Negotiations
1. A Party may provide for its entities to conduct negotiations:
(a) in the context of procurements in which they have indicated such intent in the notice of intended procurement; 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 forth in the notices or tender documentation.
2. Procuring entities shall not, in the course of negotiations, discriminate between participating suppliers.
3. An 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 notices 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 7.14. Opening of Tenders and Contract Awards
Treatment of Tenders
1. A procuring entity shall receive and open all tenders under procedures that guarantee the fairness and impartiality of the procurement process and the confidentiality of tenders. It also shall treat tenders in confidence until at least the opening of the tenders.
2. Where a procuring entity provides suppliers with an opportunity to correct unintentional errors of form between the opening of tenders and the awarding of the contract, the entity shall provide the same opportunity to all participating suppliers.
Awarding of Contracts
3. A procuring entity shall require that, in order to be considered for an award, a tender shall be submitted:
(a) in writing and shall, at the time of opening, comply with the essential requirements specified in the notices and tender documentation; and
(b) by a supplier that satisfies any conditions for participation.
4. Unless a procuring entity determines that it is not in the public interest to award a contract, the entity shall award the contract to the supplier that the entity has determined satisfies the conditions for participation and is fully capable of undertaking the contract and whose tender is determined to be the most advantageous solely on the basis of the requirements and evaluation criteria specified in the notices and tender documentation, or where price is the sole criterion, the lowest price.
5. 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 can comply with the conditions of participation and is capable of fulfilling the terms of the contract.
6. A procuring entity may not cancel a procurement or terminate or modify awarded contracts in a manner that circumvents the obligations under this Chapter.
Article 7.15. Transparency In Procurement Information
Information Provided to Suppliers
1. A procuring entity shall promptly inform suppliers that have submitted tenders of its contract award decisions and, on request, shall do so in writing. Subject to Article 7.16 (Disclosure of Information) a procuring entity shall, on request, provide an unsuccessful supplier with an explanation of the entity's reasons for not selecting that supplier's tender and the relative advantages of the successful supplier's tender. Publication of Award Information
2. Not later than 72 days after an award, a procuring entity shall publish in a paper or electronic medium listed in Appendix 2 to Annex XX (General Notes), a notice that includes at least the following information about the contract:
(a) the name and address of the procuring entity;
(b) a description of the goods or services procured;
(c) the date of award;
(d) the name and address of the successful supplier;
(e) the contract value; and
(f) the procurement method used and, in cases where a procedure has been used pursuant to paragraph 8 of Article 7.10 (Tendering Procedures), a description of the circumstances justifying the use of such procedure.
Maintenance of Records
3. A procuring entity shall maintain reports and records of tendering procedures relating to covered procurement, including the reports provided for in paragraph 9 of Article 7.10 (Tendering Procedures) and shall retain such reports and records for a period of at least three years after the award of a contract.
Article 7.16. Disclosure of Information
Provision of Information to a Party
1. On request of any Party, a Party shall provide promptly any information necessary to determine whether a procurement was conducted fairly, impartially and in accordance with this Chapter. The information shall include information on the characteristics and relative advantages of the successful tender.
Non-Disclosure of Information
2. No Party, procuring entity or review authority may disclose information that the person providing it has designated as confidential in accordance with domestic law, except with the authorisation of such person.
3. Notwithstanding any other provision of this Chapter, a Party, including its procuring entities, may not provide information to a particular supplier that might prejudice fair competition between suppliers.
4. Nothing in this Chapter shall be construed to require a Party, including its procuring entities, authorities, and review bodies, to release confidential information under this Chapter where release: