(ii) public debt management;
(g) the hiring of a government employee or related employment measure;
(h) a procurement made by an entity or state enterprise from another entity or state enterprise of that Party; or
(i) a purchase made under exceptionally advantageous conditions that only arise in the very short term in the case of an unusual disposal such as one arising from liquidation, receivership or bankruptcy, but not for a routine purchase from a regular supplier.
3. Nothing in this Chapter prevents a Party from developing new procurement policies, procedures or contractual means, provided they are not inconsistent with this Chapter.
4. If a procuring entity awards a contract that is not covered by this Chapter, this Chapter does not cover a good or service component of that contract.
Valuation
5. In estimating the value of a procurement for the purpose of ascertaining whether it is a procurement covered by this Chapter, a procuring entity:
(a) shall not divide a procurement into separate procurements or 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;
(b) shall 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) the estimated maximum total value of the procurement, inclusive of optional purchases, if the procurement provides for the possibility of option clauses; and
(c) shall base its calculation of the total maximum value of the procurement over its entire duration, if the procurement is to be conducted in multiple parts, with contracts to be awarded at the same time or over a given period to one or more suppliers.
Article 16.03. Security and General Exceptions
1. Nothing in this Chapter prevents a Party from taking action or not disclosing information that it considers necessary for the protection of its essential security interests relating to procurement:
(a) of arms, ammunition or war materials;
(b) indispensable for national security; or
(c) for national defence purposes.
2. Provided that a measure is not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between Parties if the same conditions prevail or a disguised restriction on trade between the Parties, nothing in this Chapter prevents a Party from adopting or maintaining a measure:
(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.
3. The Parties understand that paragraph 2(b) includes an environmental measure necessary to protect human, animal or plant life or health.
Article 16.04. General Principles
National Treatment and Non-Discrimination
1. With respect to a measure relating to procurement covered by this Chapter, each Party shall accord immediately and unconditionally to a good or service of the other Party, and to a supplier of the other Party of such good or service, treatment no less favourable than the most favourable treatment the Party accords to a domestic good, service or supplier.
2. With respect to a measure relating to procurement covered by this Chapter, a Party shall not:
(a) treat a locally established supplier less favourably than another locally established supplier on the basis of the degree of foreign affiliation or ownership; or
(b) discriminate against a locally established supplier on the basis that the good or service offered by that supplier for a particular procurement is a good or service of the other Party.
Conduct of Procurement
3. A procuring entity shall conduct procurement covered by this Chapter in a transparent and impartial manner that:
(a) is consistent with this Chapter;
(b) avoids conflicts of interest; and
(c) prevents corrupt practices.
Tendering Procedures
4. A procuring entity shall use open tendering except where Articles 16.07(6) through 16.07(9) or Article 16.10 apply.
Rules of Origin
5. With regard to the procurement of a good covered by this Chapter, each Party shall apply the rules of origin that it applies to that good in the normal course of trade.
Offsets
6. A Party, including its procuring entities, shall not seek, take account of, impose or enforce offsets at any stage of a procurement covered by this Chapter.
Measures Not Specific to Procurement
7. Paragraphs 1 and 2 do not apply to:
(a) a customs duty or other charge referred to in paragraphs (a) through (d) of the definition of "customs duty" in Article 1.01, or the method of levying that duty or charge;
(b) another import regulation or formality; or
(c) a measure affecting trade in a service, other than a measure governing procurement covered by this Chapter.
Article 16.05. Publication of Procurement Information
1. Each Party shall:
(a) promptly publish a law, regulation, judicial decision, administrative ruling of general application, and procedure regarding procurement covered by this Chapter, and a modification of those measures, in an officially designated electronic or paper medium that is widely disseminated and remains readily accessible to the public; and
(b) on request of the other Party, provide it with an explanation of a measure that must be published under paragraph (a).
2. Article 20.02 (Transparency - Publication) does not apply to a measure that must be published under paragraph (a).
Article 16.06. Publication of Notices
Notice of Intended Procurement
1. For each procurement covered by this Chapter, a procuring entity shall publish a notice inviting suppliers to submit tenders, or a notice inviting applications to participate in the procurement. The procuring entity shall publish that notice in an electronic or paper medium that is widely disseminated and readily accessible to the public for the entire period established for tendering. Each Party shall maintain a gateway electronic site that includes links to all notices of procuring entities for procurements covered by this Chapter.
2. Each notice of intended procurement must include:
(a) a description of the procurement, including the nature and, if known, the quantity of the good or service to be procured;
(b) the procurement method that will be used and whether it will involve negotiation or electronic auction;
(c) a list of conditions for participation of suppliers;
(d) the name and address of the procuring entity and other information necessary to contact the procuring entity and obtain relevant documents relating to the procurement as well as their cost and terms of payment, if applicable;
(e) the address and time limits for the submission of tenders or applications for participation;
(f) the time frame for delivery of the good or service to be procured or the duration of the contract;
(g) if, under Article 16.07, a procuring entity intends to select a limited number of qualified suppliers to be invited to tender, the criteria that will be used to select them and, where applicable, any limitation on the number of suppliers that will be permitted to tender; and
(h) an indication that the procurement is covered by this Chapter.
Notice of Planned Procurement
3. The Parties shall encourage procuring entities to publish as early as possible in each fiscal year notices regarding their respective procurement plans. These notices should include the subject matter of any planned procurement and the estimated date of the publication of the notice of intended procurement.
Article 16.07. Conditions for Participation
General Requirements
1. Where a procuring entity requires a supplier to satisfy a registration, qualification or other requirement or conditions for participation in a separate process in order to participate in a procurement covered by this Chapter, the procuring entity shall publish a notice inviting suppliers to apply for participation. The procuring entity shall publish the notice sufficiently in advance to provide interested suppliers time to prepare and submit applications and to provide the procuring entity with sufficient time to evaluate and make its determination based on those applications.
2. A procuring entity shall limit conditions for participation in a procurement covered by this Chapter to those that are essential to ensure that a supplier has the legal and financial capacity and the commercial and technical ability to undertake the relevant procurement.
3. In establishing the conditions for participation, a procuring entity:
(a) shall not impose the condition that, in order for a supplier to participate in a procurement, the supplier has previously been awarded a contract by a procuring entity of a Party; and
(b) may require relevant prior experience if essential to meet the requirements of the procurement.
4. In assessing whether a supplier satisfies the conditions for participation, a procuring entity shall:
(a) evaluate the financial capacity and the commercial and technical abilities of a supplier on the basis of that supplier's business activities inside and outside the territory of the Party of the procuring entity; and
(b) base its evaluation on the conditions that the procuring entity has specified in advance in its notices or tender documentation.
5. In assessing whether a supplier satisfies the conditions for participation, a procuring entity shall recognize as qualified all domestic suppliers and suppliers of the other Party that satisfy the conditions for participation.
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:
(a) published annually; and
(b) where published by electronic means, made available continuously.
7. The notice referred to in paragraph 6 must include:
(a) a description of the good or service, or category thereof, for which the list may be used;
(b) the conditions for participation to be satisfied by suppliers and the methods that the procuring entity will use to verify that a supplier satisfies those conditions;
(c) the name and address of the procuring entity and other information necessary to contact the procuring entity and to obtain relevant documents relating to the list;
(d) the period of validity of the list, the means for its renewal or termination, or, if the period of validity is not provided, an indication of the method by which notice will be given of the termination of the list; and
(e) an indication that the list may be used for procurement covered by this Chapter.
8. A procuring entity shall allow suppliers to apply at any time for inclusion on a multi-use list and shall include on the list all qualified suppliers within a reasonably short time.
Selective Tendering
9. If a procuring entity intends to use selective tendering, the procuring entity shall:
(a) publish a notice inviting suppliers to apply for participation in the procurement giving sufficient time for interested suppliers to prepare and submit applications and for the procuring entity to evaluate and make its determinations based on those applications; and
(b) allow all domestic suppliers and suppliers of the other Party that the entity has determined satisfy the conditions for participation to submit a tender, unless in the notice of intended procurement or, if publicly available, in the tender documentation, the procuring entity has stated a limitation on the number of suppliers that will be permitted to tender and the criteria for this limitation.
Information on Procuring Entity Decisions
10. A procuring entity shall promptly inform a supplier that submits an application for participation in a procurement or for inclusion on a multi-use list of the procuring entity's decision with respect to the application.
11. If a procuring entity:
(a) rejects a supplier's application for participation in a procurement or an application for inclusion on a multi-use list,
(b) ceases to recognize a supplier as qualified, or
(c) removes a supplier from a multi-use list,
the procuring entity shall promptly inform the supplier and, on request of the supplier, promptly provide the supplier with a written explanation of the reasons for its decision.
12. If there is supporting evidence, a procuring entity may exclude a supplier on grounds such as:
(a) bankruptcy;
(b) false declarations; or
(c) significant or persistent deficiencies in performance of a substantive requirement or of an obligation under a prior contract.
13. A procuring entity of a Party shall not adopt or maintain a registration system or qualification procedure with the purpose or the effect of creating an unnecessary obstacle to the participation of a supplier of the other Party in its procurement.
Article 16.08. Technical Specifications and Tender Documentation
Technical Specifications
1. A procuring entity shall not prepare, adopt, or apply a technical specification or prescribe a conformity assessment procedure with the purpose or the effect of creating an unnecessary obstacle to international trade between the Parties.
2. In prescribing the technical specifications for a good or service 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 an international standard, if it exists; otherwise, on a national technical regulation, recognized national standard or building code.
3. A procuring entity shall not prescribe a technical specification requiring or referring 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 requirement provided that, in those cases, the procuring entity includes words such as "or equivalent" in the tender documentation.
4. 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 a technical specification for a specific procurement covered by this Chapter from a person that may have a commercial interest in the procurement.
5. A procuring entity may, in accordance with this Article, prepare, adopt or apply a technical specification to promote the conservation of natural resources or protect the environment.
Tender Documentation
6. A procuring entity shall make available 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, that documentation shall include a complete description of:
(a) the procurement, including the nature and the quantity of the good or service to be procured or, if the quantity is not known, the estimated quantity and any requirements to be fulfilled, including any technical specification, conformity assessment certification, plan, drawing or instructional material;
(b) any condition for participation of a supplier, including a list of information and documents that suppliers are required to submit in connection with the conditions for participation;
(c) all evaluation criteria to be considered in the awarding of the contract, and the relative importance of that criteria, except where price is the sole criterion;
(d) where there will be a public opening of tenders, the date, time and place for the opening of tenders; and
(e) any other terms or conditions relevant to the evaluation of tenders.
7. A procuring entity shall promptly reply to a reasonable request for relevant information by a supplier participating in a procurement covered by this Chapter, except that the procuring entity shall not make available information with regard to a specific procurement in a manner that would give the requesting supplier an advantage over its competitors in the procurement.
Modifications
8. If, prior to the award of a contract, a procuring entity modifies the criteria or requirements set out in the 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 that modified, amended or re-issued notice or tender documentation:
(a) to all suppliers that are participating in the procurement at the time of the modification, amendment or re-issuance, where those 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 those suppliers to modify and submit amended tenders, as appropriate.
Article 16.09. Time Limits for the Submission of Tenders
1. A procuring entity shall provide suppliers sufficient time to submit applications to participate in a procurement covered by this Chapter and prepare and submit responsive tenders, taking into account the nature and complexity of the procurement.
Deadlines
2. Except as provided for in paragraphs 3 and 4, a procuring entity shall establish that the final date for the submission of tenders is not 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.
3. A procuring entity may reduce by 5 days the time limit established under paragraph 2 for the submission of tenders, 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 procuring entity accepts tenders by electronic means.
4. A procuring entity may establish a time limit of less than 40 days for the submission of tenders provided that the time given to suppliers is sufficient to enable them to prepare and submit responsive tenders, but not less than 10 days before the final date for the submission of tenders, if:
(a) the procuring entity published a separate notice containing the information specified in Article 16.06(3) at least 40 days and not more than 12 months in advance, and such separate notice contains a description of the procurement, the relevant time limits for the submission of tenders, or, if applicable, applications for participation, and the address from which documents relating to the procurement may be obtained;
(b) there is a second or subsequent publication of notices for procurement of a recurring nature;
(c) the procuring entity procures a commercial good or service; or
(d) a state of urgency duly substantiated by the procuring entity renders impracticable the time limits specified in paragraph 2 or, if applicable, paragraph 3.
Article 16.10. Limited Tendering
1. Provided that a procuring entity does not use this provision to avoid competition among suppliers, to protect domestic suppliers, or in a manner that discriminates against suppliers of the other Party, the procuring entity may contact a supplier of its choice and may choose not to apply Articles 16.06, 16.07, 16.08, 16.09 and 16.11 only under the following circumstances, if:
(a) the requirements of the tender documentation are not substantially modified and:
(i) no tenders were submitted or no suppliers applied to participate in a procurement covered by this Chapter,
(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) the procurement can be carried out only by a particular supplier and a reasonable alternative or substitute does not exist because:
(i) the requirement is for a work of art,
(ii) a good or service being procured is protected by a patent, copyright or another exclusive right, or
(iii) of the absence of competition for technical reasons;