10. If a procuring entity or other entity of a Party rejects a supplier’s request for participation or application for inclusion on a multi-use list, ceases to recognize a supplier as qualified, or removes a supplier from a multi-use list, the entity shall promptly inform the supplier and on request of the supplier, promptly provide the supplier with a written explanation of the reason for its decision.
Article 10.10. Limited Tendering
1. Subject to paragraph 2 and provided that it does not use this provision for the purpose of avoiding competition between suppliers, to protect domestic suppliers, or in a manner that discriminates against suppliers of the other Party, a procuring entity may use limited tendering.
2. If a procuring entity uses limited tendering, it may choose, according to the nature of the procurement, not to apply Article 10.7, Article 10.8, Article 10.9, Article 10.11, Article 10.12, Article 10.13, Article 10.14, or Article 10.15. A procuring entity may use limited tendering only under the following circumstances:
(a) if, in response to a prior notice, invitation to participate, or invitation to tender:
(i) no tenders were submitted or no suppliers requested participation;
(ii) no tenders were submitted that conform to the essential requirements in the tender documentation;
(iii) no suppliers satisfied the conditions for participation, or
(iv) the tenders submitted were collusive, provided that the procuring entity does not substantially modify the essential requirements set out in the notices or tender documentation;
(b) if the good or service can be supplied only by a particular supplier and no reasonable alternative or substitute good or service exists 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 or its authorised agents, of goods or services that were not included in the initial procurement if a change of supplier for such additional goods or services:
(i) cannot be made for technical reasons such as requirements of interchangeability or interoperability with existing equipment, software, services, or installations procured under the initial procurement, or due to conditions under original supplier warranties, and
(ii) would cause significant inconvenience or substantial duplication of costs for the procuring entity;
(d) for a good purchased on a commodity market or exchange;
(e) if a procuring entity procures a prototype or a first good or service that is intended for limited trial or 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 prototype or 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 prototype or the first good or service is suitable for production or supply in quantity to acceptable quality standards, but does not include quantity production or supply to establish commercial viability or to recover research and development costs. Subsequent procurements of these newly developed goods or services, however, shall be subject to this Chapter;
(f) if additional services that were not included in the initial contract but that were within the objectives of the original tender documentation have, due to unforeseeable circumstances, become necessary to complete the construction services described therein. However, the total value of contracts awarded for additional services may not exceed 50 per cent of the value of the initial contract;
(g) for purchases made under exceptionally advantageous conditions that only arise in the very short term, such as from unusual disposals, liquidation, bankruptcy, or receivership, but not for routine purchases from regular suppliers;
(h) if a contract is awarded to the winner of a design contest, provided that:
(i) the contest has been organised in a manner that is consistent with this Chapter, and
(ii) the contest is judged by an independent jury with a view to award a design contract to the winner, or
(i) in so far as is strictly necessary if, for reasons of extreme urgency brought about by events unforeseeable by the procuring entity, the good or service could not be obtained in time by means of open or selective tendering.
3. For each contract awarded in accordance with paragraph 2, a procuring entity shall prepare a report in writing, or maintain a record, that includes the name of the procuring entity, the value and kind of good or service procured, and a statement that indicates the circumstances and conditions described in paragraph 2 that justified the use of limited tendering.
Article 10.11. Negotiations
1. A Party may provide for its procuring entities to conduct negotiations in the context of covered procurement if:
(a) the negotiations are conducted by an objective and transparent procedure, ensuring the fair competition between suppliers;
(b) the procuring entity has indicated its intent to conduct negotiations in the notice of intended procurement required under Article 10.7;
(c) it appears from the evaluation that no tender is obviously the most advantageous in terms of the specific evaluation criteria set out in the notice of intended procurement or tender documentation;
(d) there is a need to clarify the terms and conditions, or (e) all bids exceed the allocated prices provided for in the procuring entity’s budget.
2. A procuring 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 notice of intended procurement or tender documentation, and
(b) when negotiations are concluded, provide a common deadline for the remaining participating suppliers to submit any new or revised tenders.
Article 10.12. Technical Specifications
1. A procuring entity shall not prepare, adopt, or apply any technical specification or prescribe any conformity assessment procedure with the purpose or effect of creating an unnecessary obstacle to trade between the Parties.
2. In prescribing the technical specifications for the good or service being procured, a procuring entity shall, if appropriate:
(a) set out the technical specifications in terms of performance and functional requirements, rather than design or descriptive characteristics, and
(b) base the technical specifications on international standards, if these exist; otherwise, on national technical regulations, recognised national standards or building codes.
3. A procuring entity 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 these 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 any technical specification for a specific procurement from a person that may have a commercial interest in the procurement.
5. For greater certainty, a procuring entity may conduct market research in developing specifications for a particular procurement.
6. For greater certainty, this Article is not intended to preclude a procuring entity from preparing, adopting, or applying technical specifications to promote the conservation of natural resources or the protection of the environment.
7. For greater certainty, this Chapter is not intended to preclude a Party, or its procuring entities, from preparing, adopting, or applying technical specifications required to protect sensitive government information, including specifications that may affect or limit the storage, hosting, or processing of such information outside the territory of the Party.
Article 10.13. Tender Documentation
1. A procuring entity shall promptly make available or provide on request to any interested supplier tender documentation that includes all information necessary to permit the supplier to prepare and submit a responsive tender. Unless already provided in the notice of intended procurement, that tender documentation shall include a complete description of:
(a) the procurement, including the nature, scope and, if known, 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 specifications, conformity certification, plans, drawings, or instructional materials;
(b) any conditions for participation, including any financial guarantees, information, and documents that suppliers are required to submit;
(c) all criteria to be considered in the awarding of the contract and the relative importance of those criteria;
(d) if there will be a public opening of tenders, the date, time, and place for the opening;
(e) any other terms or conditions relevant to the evaluation of tenders, and
(f) any date for delivery of a good or supply of a service.
2. To the extent possible, a procuring entity should make relevant tender documentation publicly available through electronic means or a computer-based telecommunications network openly accessible to all suppliers.
3. In establishing any date for the delivery of a good or the supply of a service being procured, a procuring entity shall take into account factors such as the complexity of the procurement.
4. A procuring entity shall promptly reply to any reasonable request for relevant information by an interested or participating supplier, provided that the information does not give that supplier an advantage over other suppliers.
Modifications
5. If a procuring entity may modify, pursuant to the laws of each Party, the criteria or requirements set out in the notice of intended procurement or tender documentation provided to participating suppliers, or amend or reissue 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 in the procurement at the time of the modification, amendment, or re-issuance, if 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 re-submit their initial tender, if appropriate.
Article 10.14. Time Periods
1. A procuring entity shall, consistent with its own reasonable needs, provide sufficient time for a supplier to prepare and submit a request for participation and a responsive tender, taking into account factors such as:
(a) the nature and complexity of the procurement;
(b) the extent of subcontracting anticipated, and
(c) whether tenders can be received by electronic means.
2. The time periods for procurement in each Party shall be in accordance with Section G of each Party’s Schedule set out in Annex 10.
Article 10.15. Treatment of Tenders and Awarding of Contracts
Treatment of Tenders
1. A procuring entity shall receive, open and treat all tenders under procedures that guarantee the fairness and impartiality of the procurement process and the confidentiality of tenders.
2. If the tender of a supplier is received after the time specified for receiving tenders, the procuring entity shall not penalize that supplier if the delay is due solely to the mishandling on the part of the procuring entity.
3. If 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 be submitted in writing and shall, at the time of opening, comply with the essential requirements set out in the notice and tender documentation and be submitted by a supplier who satisfies the conditions for participation.
5. Unless a procuring entity determines that it is not in the public interest to award a contract, it shall award the contract to the supplier that the procuring entity has determined to be fully capable of fulfilling the terms of the contract and that, based solely on the evaluation criteria specified in the notice and tender documentation, submits:
(a) the most advantageous tender, or
(b) if price is the sole criterion, the lowest price.
6. In a manner consistent with the provisions of this Chapter, a procuring entity may require a supplier to comply with general terms and conditions of the tender documentation in accordance with the terms of the contract.
7. If a procuring entity received 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.
8. A procuring entity shall not use options, cancel a covered procurement, or modify or terminate awarded contracts in order to avoid the obligations of this Chapter.
Article 10.16. Transparency and Post-Award Information
Information Provided to Suppliers
1. A procuring entity shall promptly inform suppliers that have submitted a tender of the contract award decision. The procuring entity may do so in writing or through the prompt publication of the notice in paragraph 3, provided that the notice includes the date of award. If a supplier has requested the information in writing, the procuring entity shall provide it in writing.
2. Subject to Article 10.17, a procuring entity shall, on request, provide an unsuccessful supplier with an explanation of the reasons why the procuring entity did not select the unsuccessful supplier’s tender or an explanation of the relative advantages of the successful supplier’s tender.
Maintenance of Records
3. A procuring entity shall maintain the documentation, records and reports relating to tendering procedures and contract awards for covered procurement, including the records and reports provided for in Article 10.10.3, for at least three years after the award of a contract.
Article 10.17. Disclosure of Information
Provision of Information to Parties
1. On request of the other Party, a Party shall provide promptly information sufficient to demonstrate whether a procurement was conducted fairly, impartially and in accordance with this Chapter, including, if applicable, information on the characteristics and relative advantages of the successful tender, without disclosing confidential information. The Party that receives the information shall not disclose it to any supplier, except after consulting with, and obtaining 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, except to the extent required by law or with the written authorisation of the supplier that provided the information, disclose information that would prejudice legitimate commercial interests of a particular supplier or that might prejudice fair competition between suppliers.
3. Nothing in this Chapter shall be construed to require a Party, including its procuring entities, authorities, and review bodies, to disclose confidential information if that 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 10.18. Ensuring Integrity In Procurement Process
Each Party shall ensure that criminal or administrative measures exist to address corruption in its government procurement. These measures may include procedures to render ineligible for participation in the Party’s procurements, either indefinitely or for a stated period of time, suppliers that the Party has determined to have engaged in fraudulent or other illegal actions in relation to government procurement in the Party’s territory. Each Party shall also ensure that it has in place policies and procedures to eliminate to the extent possible or manage any potential conflict of interest on the part of those engaged in or having influence over a procurement.
Article 10.19. Domestic Review
1. Each Party shall maintain, establish, or designate at least one impartial administrative or judicial authority (review authority) that is independent of its procuring entities to review, in a non-discriminatory, timely, transparent, and effective manner, a challenge or complaint (complaint) by a supplier that there has been:
(a) a breach of this Chapter, or
(b) if the supplier does not have a right to directly challenge a breach of this Chapter under the law of a Party, a failure of a procuring entity to comply with the Party’s measures implementing this Chapter,
arising in the context of a covered procurement, in which the supplier has, or had, an interest. The procedural rules for these complaints shall be in writing and made generally available.
2. In the event of a complaint by a supplier, arising in the context of covered procurement in which the supplier has, or had, an interest, that there has been a breach or a failure as referred to in paragraph 1, the Party of the procuring entity conducting the procurement shall encourage, if appropriate, the procuring entity and the supplier to seek resolution of the complaint through consultations. The procuring entity shall accord impartial and timely consideration to the complaint in a manner that is not prejudicial to the supplier’s participation in ongoing or future procurement or to its right to seek corrective measures under the administrative or judicial review procedure. Each Party shall make information on its complaint mechanisms generally available.
3. If a body other than the review authority initially reviews a complaint, a Party shall ensure that the supplier may appeal the initial decision to the review authority that is independent of the procuring entity that is the subject of the complaint.
4. If the review authority has determined that there has been a breach or a failure as referred to in paragraph 1, a Party may limit compensation for the loss or damages suffered to either the costs reasonably incurred in the preparation of the tender or in bringing the complaint, or both.
5. Each Party shall ensure that, if the review authority is not a court, its review procedures are conducted in accordance with the following procedures:
(a) a supplier shall be allowed sufficient time to prepare and submit a complaint in writing, which in no case shall be less than 10 days from the time when the basis of the complaint became known or reasonably should have become known to the supplier;
(b) a procuring entity shall respond in writing to a supplier’s complaint and provide all relevant documents to the review authority;
(c) a supplier that initiates a complaint shall be provided an opportunity to reply to the procuring entity’s response before the review authority takes a decision on the complaint, and
(d) the review authority shall provide its decision on a supplier’s complaint in a timely manner, in writing, with an explanation of the basis for the decision.
6. Each Party shall adopt or maintain procedures that provide for:
(a) prompt interim measures, pending the resolution of a complaint, to preserve the supplier’s opportunity to participate in the procurement and to ensure that the procuring entities of the Party comply with its measures implementing this Chapter, and
(b) corrective action that may include compensation under paragraph 4.
The procedures may provide that overriding adverse consequences for the interests concerned, including the public interest, may be taken into account when deciding whether those measures should be applied. Just cause for not acting shall be provided in writing.
Article 10.20. Modifications and Rectification of Schedules
1. A Party shall notify any proposed modification or rectification (modification) to its Schedule set out in Annex 10 by delivering a notice in writing to the other Party. A Party shall provide compensatory adjustments for a change in coverage if necessary to maintain a level of coverage comparable to the coverage that existed prior to the modification. The Party may include the offer of compensatory adjustment in its notice.
2. A Party is not required to provide compensatory adjustments to the other Party if the proposed modification concerns one of the following:
(a) a procuring entity over which the Party has effectively eliminated its control or influence in respect of covered procurement by that procuring entity, or
(b) rectifications of a purely formal nature and minor modifications to its Schedule set out in Annex 10, such as:
(i) changes in the name of a procuring entity;
(ii) the merger of one or more procuring entities listed in its Schedule;
(iii) the separation of a procuring entity listed in its Schedule into two or more procuring entities that are all added to the procuring entities listed in the same Section of the Annex, or
(iv) changes in website references,
and the other Party does not object under paragraph 3 on the basis that the proposed modification does not concern subparagraph (a) or (b).
3. If a Party considers that its rights under this Chapter are affected by a proposed modification that is notified under paragraph 1, it shall notify the other Party of any objection to the proposed modification within 45 days of the date of delivery of the notice.
4. If a Party objects to a proposed modification, including a modification regarding a procuring entity on the basis that government control or influence over the entity’s covered procurement has been effectively eliminated, that Party may request additional information, including information on the nature of any government control or influence, with a view to clarifying and reaching agreement on the proposed modification, including the procuring entity’s continued coverage under this Chapter. The modifying Party and the objecting Party shall make every attempt to resolve the objection through consultations.
5. The Joint Committee shall modify Annex 10 to reflect any agreed modification.
Article 10.21. Facilitation of Participation by SMEs
1. The Parties recognise the important contribution that SMEs can make to economic growth and employment and the importance of facilitating the participation of SMEs in government procurement.
2. If a Party maintains a measure that provides preferential treatment for SMEs, the Party shall ensure that the measure, including the criteria for eligibility, is transparent.
3. To facilitate participation by SMEs in covered procurement, each Party shall, to the extent possible and if appropriate:
(a) provide comprehensive procurement-related information that includes a definition of SMEs in a single electronic portal;
(b) endeavour to make all tender documentation available free of charge;
(c) conduct procurement by electronic means or through other new information and communication technologies, and
(d) consider the size, design, and structure of the procurement, including the use of subcontracting by SMEs.
Article 10.22. Language
In order to improve market access to each Party’s procurement market, each Party shall, to extent practicable, make available in English the publications required under Article 10.6, including the publications listed in Section G of each Party’s Schedule set out in Annex 10.
Article 10.23. Review
If so agreed by the Parties, they shall review the operation of this Chapter no later than two years after the date of entry into force of this Agreement. Upon request of a Party, the Parties may enter into negotiations with a view to improving market access coverage under this Chapter.
Chapter 11. INTELLECTUAL PROPERTY
Section A. General Provisions
Article 11.1. Definition
For the purposes of this Chapter:
intellectual property refers to:
(a) copyright, including copyright in computer programmes and in databases, and related rights;
(b) patents and utility models;
(c) trademarks;
(d) industrial designs;
(e) layout-designs (topographies) of integrated circuits;
(f) geographical indications, and
(g) protection of undisclosed information.