1. For each procurement covered by this chapter, an entity shall publish a notice in advance inviting interested suppliers to submit tenders for procurement ("that notice of procurement future") or, where appropriate, a request to participate in the procurement, except as provided in article 13.9.2. each such notice shall be accessible during the entire period established for tendering for the relevant procurement.
2. Each of a future procurement notice shall include at least a description of the procurement method; any conditions that suppliers must fulfil to participate in the procurement; the name of the entity issuing the notice; the address where suppliers may obtain all documents relating to the procurement and the time-limits for submission of tenders.
Article 13.5. Time Limits for the Submission of Tenders
1. All time limits established by the entities for a procurement process shall be adequate to allow suppliers to prepare and submit appropriate tenders according to the nature and complexity of the procurement.
2. Notwithstanding the preceding paragraph, entities shall not less than ten (10) days between the date on which the notice of future procurement is published and the final date for the submission of tenders.
Article 13.6. Information on Future Procurements
1. An entity shall provide interested suppliers with all the information necessary to enable them to prepare and submit tenders. the documentation shall include all criteria that the entity will consider in awarding the contract, including technical requirements, cost factors and their weights or, where appropriate, the relative values that the entity will assign to these criteria in evaluating tenders.
2. Where an entity does not publish all the tender documentation by electronic means, it shall ensure that the same is available to any supplier that requests.
3. Where an entity during the course of a procurement, modifies the criteria referred to in paragraph 1 shall transmit such modifications in writing:
(a) To all suppliers that are participating in the procurement at the time of the amendment of the criteria, if the identities of such suppliers are known, and in other cases, in the same manner as the original information was transmitted; and
(b) In adequate time to allow such suppliers to modify and resubmit their tenders, as appropriate.
Article 13.7. Technical Specifications
1. An entity shall not adopt or apply technical specifications or require any conformity assessment procedure with the purpose or the effect of creating unnecessary obstacles to trade between the parties.
2. Any technical specifications prescribed by an entity shall, where appropriate:
(a) Be specified in terms of performance and functional requirements rather than design or descriptive characteristics; and
(b) Be based on international standards, where applicable, or otherwise on national technical regulations, recognised national building codes or standards.
3. A procuring entity shall prescribe technical specifications that require or refer to a trade mark or trade name, patents, designs or type, specific origin or producer or supplier unless there is no sufficiently precise or intelligible way of describing the otherwise procurement requirements and provided that in such cases, such as words or equivalent are included in the tender documentation.
4. An entity shall not seek or accept, in a manner that would have the effect of precluding that advice, competition 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 that procurement.
Article 13.8. Conditions for Participation
1. Where an entity requires suppliers to satisfy conditions for registration or qualification or any other condition for participation ("conditions for participation"), in order to participate in a procurement, the entity shall publish a notice inviting suppliers to apply for participation. the entity shall publish the notice sufficiently in advance to interested suppliers provide adequate time to prepare and submit applications and for the Entity to evaluate and make its determinations based on such applications.
2. An entity shall:
(a) Limit any conditions for participation in a procurement to those that are essential to ensure that the potential supplier has the capability, technical and legal trade, financial and technical requirements to fulfill the requirements of public procurement, which shall be assessed on the basis of its global business activities of the supplier.
(b) Qualification base their decisions solely on the conditions for participation that have been specified in advance in notices or tender documentation; and
(c) Recognize as qualified suppliers of all the parties to comply with the requirements of the conditions for participation in a procurement covered by this chapter.
3. Entities may establish permanent lists of qualified suppliers publicly available to participate in procurements. where an entity requires suppliers to qualify for such a list in order to participate in a procurement and a supplier that has not yet qualified requests to be included in the list, the Parties shall ensure that the procedure for inclusion in the list is initiated without delay and allow a supplier participating in the procurement provided that the registration procedures can be completed within the deadline for submission of tenders.
4. No entity may impose as a condition for a supplier to participate in a procurement that it has previously been awarded one or more contracts by an entity of that Party or that the supplier has prior work experience in the territory of that Party.
5. An entity shall promptly communicate to any supplier that qualification has applied for its decision on whether that is qualified supplier. where an entity rejects an application for qualification or ceases to recognize as a qualified supplier that entity shall, upon request, provide promptly the supplier with a written explanation of the reasons for its decision.
6. Nothing in this article shall preclude an entity from excluding from a supplier A procurement on grounds such as bankruptcy or liquidation, insolvency, false declarations within a procurement or significant deficiencies in performance of an obligation under a prior contract.
Article 13.9. Contracting Modalities
1. Entities shall award contracts by means of open tendering procedures, in the course of which any interested supplier may submit a tender; or where appropriate, an application for participation in a procurement.
2. Provided that a procuring entity does not use this provision to avoid competition or to protect domestic suppliers or to discriminate against suppliers, entities of the other party may award contracts by means other than open tendering procedures, in any of the following circumstances:
(a) In the absence of tenders that conform to the essential requirements of the tender documentation provided prior invitation to tender, including any conditions for participation, on condition that the requirements of the initial procurement are not substantially modified in the contract;
(b) Where, for works of art or for reasons connected with the protection of patents, copyrights or other exclusive rights of intellectual property, or in the absence of competition for technical reasons, the goods or services can be supplied only by a particular supplier and no reasonable alternative or substitute;
(c) For additional deliveries by the original supplier that are intended to be used as spare parts, or extensions service continuity of existing equipment, software, services or existing facilities, where a change of supplier would compel the Entity to procure goods or services that do not meet the requirements of compatibility with the equipment, software, services or existing facilities;
(d) For purchases made on a market commodity (commodities);
(e) Where an entity procures a first prototype or a good or service that is developed at its request in the course of and for a particular contract for research, experiment, study or development original. when such contracts have been fulfilled, the subsequent procurements of such goods or services shall be awarded by means of open tendering procedures;
(f) Where in the case of public works shall require additional construction services to the original contract, to respond to unforeseen circumstances and that are necessary for the fulfilment of the objectives of the contract that originated. however, the total value of contracts awarded for additional construction services may not exceed fifty percent (50 per cent of the amount of the main contract; or
(g) Insofar as is where strictly necessary for reasons of extreme urgency caused by unforeseen events by the entity, the goods or services could not be obtained in time using open tendering procedures and the use of such procedures would result in serious injury to the entity or for the performance of its duties. for purposes of this paragraph, the lack of planning of an entity on the funds available within a specified period, shall not constitute an unforeseen event.
3. An entity shall maintain a record or prepare a written report to bring the justification for any specific contract awarded by means other than open tendering proceedings as determined pursuant to paragraph 2.
Article 13.10. Treatment of Tenders and Awarding of Contracts
Receipt and opening of tenders
1. A procuring entity shall receive and open all tenders under procedures that guarantee the fairness and equality between suppliers of the Parties in the procurement process and shall treat tenders in confidence until at least the opening of tenders.
The award of contracts
2. An entity shall require that a tender, in order to be considered for an award shall be submitted in writing and shall at the time of the opening of tenders:
(a) Conform to the essential requirements of the tender documentation; and
(b) Be submitted by a supplier that has satisfied the conditions for participation that the entity has provided to all participating suppliers.
3. Unless an entity determines that a contract award would be contrary to the public interest to award the contract to the supplier that the entity has determined to be fully capable of undertaking the contract and whose tender is determined to be the most advantageous in terms of the requirements and evaluation criteria set out in the tender documentation.
4. No entity may cancel a procurement or terminate or modify awarded contracts in order to avoid the obligations of this chapter.
Article 13.11. Information on Awards
Information provided to suppliers
1. Subject to article 13.15, an entity shall promptly inform suppliers participating in a tendering procedure of its decision on the award of a contract. upon request, an entity shall provide a supplier whose tender award was not selected for the reasons for not selecting its tender and the relative advantages of the tender the entity selected.
Information on publication of awards
2. After awarding a contract covered by this chapter, an entity shall promptly publish at least the following information about the award:
(a) The name of the Entity;
(b) The description of the goods or services procured;
(c) The date of the award;
(d) The name of the winning supplier;
(e) The value of the contract award; and
(f) In cases in which are not used open tendering procedures, an indication of the circumstances justifying the use of procedures.
Record-keeping
3. An entity shall maintain records and reports of tendering procedures and contract awards covered by this chapter, including records and reports stipulated in article 13.9.3 for a period of at least three (3) years.
Article 13.12. Integrity In Public Procurement Practices
Each Party shall ensure the existence of administrative or criminal penalties to tackle corruption in public procurement; and that its entities
Establish policies and procedures to remove any potential conflict of interest on the part of those involved in the procurement or influence on it.
Article 13.13. National Review of Challenges Filed by Suppliers
1. Each Party shall establish or designate at least one impartial administrative or judicial authority that is independent of its entities to receive and review challenges provided by suppliers in connection with the measures of a Party that are implementing this chapter, in connection with a procurement covered by this chapter and to make appropriate recommendations and findings. where a disputing a supplier is initially reviewed by a body other than such an impartial authority, the Party shall ensure that the supplier may appeal the initial decision to an impartial administrative or judicial authority that is independent of the entity that is the subject of the challenge.
2. Each Party shall provide that the authority designated or established in accordance with paragraph 1, have the power to take prompt interim measures pending the resolution of a challenge to preserve an opportunity for the supplier to participate in the procurement and to ensure that the party complies with its implementing measures this chapter, including the suspension of the award of a contract or the performance of a contract that has already been awarded. (2)
3. Each Party shall ensure that its review procedures are timely, transparent, effective and consistent with the principle of due process.
4. Each Party shall ensure that all documents relating to a disputing a procurement covered by this chapter are available to any authority established or designated in accordance with paragraph 1.
5. Without prejudice to other review procedures prepared or developed by each of the Parties, each Party shall ensure that the authorities established or designated in accordance with paragraph 1, available at least the following:
(a) An opportunity for the supplier to review relevant documents and to be heard by the Authority in a timely manner;
(b) Sufficient time for suppliers to prepare and submit a written challenges, which in no case shall be less than ten (10) days from the time when the basis of the complaint became known or should reasonably have become known to it;
(c) A requirement for the Entity respond in writing to the challenge to the supplier; and
(d) The transfer without delay and in writing of decisions relating to avoidance, with an explanation of the grounds for each decision.
6. Each Party shall ensure that the supplier of a challenge will not prejudice the supplier's ongoing or future participation in procurement.
Article 13.14. Modifications and Rectifications
1. Either party may modify its coverage under this Chapter provided that:
(a) And simultaneously provide written notice to the other party compensatory adjustments to maintain a level comparable to that coverage of existing prior acceptable, the modification, except as provided in paragraphs 2 and 3; and
(b) The other party does not object in writing within thirty (30) days of the notification.
2. Any Party may make rectifications of a purely formal nature to its coverage under this chapter, or minor amendments to its schedules in sections A to C of annex I.C, provided that it notifies the other party in writing and the other party does not object in writing within thirty (30) days of the notification. the party carrying out such rectification or minor amendments shall not be required to provide compensatory adjustments.
3. A Party need not provide compensatory adjustments in those circumstances where the parties agree that the proposed modification covers an entity over which the Party has effectively eliminated its control or influence. where the parties do not agree that such government control or influence has been effectively eliminated, the objecting party may request further information or consultations with a view to clarifying the nature of any government control or influence and reaching agreement on the Entity coverage under this chapter.
4. Where the parties have agreed to a proposed modification or rectification or minor amendment, including in the case where a Party has not objected within thirty (30) days in accordance with paragraphs 1 and 2, the Commission shall give effect to the Agreement through the immediate change in the relevant section of annex I.C.
Article 13.15. Non-Disclosable Information
1. The Parties, review their entities and authorities shall not disclose confidential information without formal authorization of the person provided that where such disclosure would prejudice the legitimate commercial interests of a particular person or might prejudice fair competition between suppliers. 2.
2. Nothing in this chapter shall be construed as requiring a party or its entities the disclosure of confidential information which would impede law enforcement or otherwise be contrary to the public interest.
Article 13.16. Exceptions
1. Provided that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between the parties or involve a
A disguised restriction to trade between the parties nothing in this chapter shall be construed to prevent a Party from adopting or maintaining measures:
(a) Necessary to protect public morals, public order or safety;
(b) Necessary to protect human life or health, plant or animal;
(c) Necessary to protect intellectual property; or
(d) Relating to goods or services of handicapped persons, of charitable institutions or of prison labour.
2. The parties understand that subparagraph (b) includes environmental measures necessary to protect human life or health, animal or plant.
Article 13.17. Public Information
Entities listed in annex 13.1 shall make every effort to publish a notice regarding their future procurement in an electronic publication that has a single point of entry for the whole of the Government and that is accessible through the Internet or a comparable computer telecommunications network.
Article 13.18. Contact Point
Each Party shall designate a contact point to address matters related to the implementation of this chapter, such as:
(a) Bilateral cooperation relating to the development and use of electronic communications in government procurement systems;
(b) The exchange of statistics and other information to assist the parties in monitoring the implementation and operation of this chapter;
(c) Examine possibilities for expanding the coverage of this chapter; and
(d) Efforts to increase understanding of their respective government procurement systems with a view to maximizing access to government procurement opportunities for vendors, especially for small and medium-sized enterprises.
Article 13.19. Future Negotiations
At the request of any party, the parties shall enter into negotiations with the aim of broadening the coverage of this chapter on a reciprocal basis, when the other party accord suppliers of a non- party by an international treaty enters into force after the Entry into Force of this Agreement, greater access to its procurement market that provided to suppliers of the other Party in accordance with this Agreement.
Article 13.20. Definitions
For purposes of this chapter:
Special conditions countervailing means the conditions imposed or considered by an entity prior to or during their procurement processes, that encourage local development or improve the accounts of the balance of payments of a party, by means of requirements of local content, technology, investment, counter-trade licensing or similar requirements;
Construction contract - - Transfer operation and public works concession contract mean any contractual arrangement the primary objective of which is to provide for the construction or rehabilitation of physical infrastructure, plants, buildings, facilities and other works and under which, in the performance of a contract by a supplier, a contracting entity grants to the supplier for a given period of temporary or a right to ownership, control and operate demand payment for the use of such works for the duration of the contract;
Entity means an entity listed in annex 13.1;
In writing or written expression of any means information in other words, numbers or symbols, including electronic expressions, which can be read, reproduced and stored;
Technical specification means a tendering requirement that:
(a) Prescribes the characteristics of:
(i) The goods to be procured, such as quality, performance, safety or dimensions, or the processes and methods of production, or
(ii) Services that are procured or the processes and methods of supply, including any applicable administrative provisions; or
(b) Includes requirements of terminology, symbols, packaging, marking or labelling, applicable to a good or service;
Supplier means a person that provides or could provide goods or services to an entity; and
Publish means to disseminate information in an electronic or paper medium that is disseminated widely and readily available to the public.
Chapter 14. Transparency
Article 14.1. Points of Contact
1. Each Party shall designate a contact point to facilitate communications between the parties on any matter covered by this Agreement.
2. At the request of the other party, the contact point shall indicate the office or official responsible for the matter and provide the required support to facilitate communication with the requesting party.
Article 14.2. Advertising
1. Each Party shall ensure that its laws, regulations, procedures and administrative rulings of general application relating to any matter covered by this Agreement are promptly published or otherwise made available in such a manner as to enable interested persons and the other party are aware of them.
2. To the extent possible, each Party shall:
(a) It shall publish in advance any measure referred to in paragraph 1 that it proposes to adopt; and
(b) Provide interested persons and the other party a reasonable opportunity to comment on such proposed measures.
Article 14.3. Notification and Provision of Information
1. Each Party shall notify the other party to the extent possible, any existing or proposed measure that the Party considers might materially affect the operation of this Agreement or otherwise substantially affect the other party interests under this Agreement.
2. A Party, at the request of the other Party shall promptly provide information and respond to questions pertaining to any existing or proposed measure, whether or not there has been notified to the other Party on Prior that measure.
3. Any notification or information provided under this article shall be without prejudice to whether the measure is consistent with this Agreement.
Article 14.4. Administrative Procedures
With a view to administering in a manner consistent and impartial manner and all reasonable measures of general application affecting matters covered by this agreement, each Party shall ensure that in its Administrative Proceedings applying measures referred to in article 14.2 With respect to persons, in particular goods or services of the other party in specific cases that:
(a) Wherever possible, the persons of the other party that are directly affected by a proceeding are in accordance with the internal rules, reasonable notice of the initiation of the same, including a description of the nature, the statement of the legal authority under which the proceeding is initiated and a general description of any issues in controversy;
(b) When the time, the nature of the proceeding and the public interest, permit such persons a reasonable opportunity to present facts and arguments in support of their positions prior to any final administrative action; and
(c) Its procedures are in accordance with domestic legislation of that Party.
Article 14.5. Review and Challenge
1. Each Party shall establish or maintain judicial tribunals or procedures or administrative nature for the purpose of the prompt review and, where warranted, the correction of final administrative actions regarding matters covered by this Agreement. such tribunals shall be impartial and shall not be linked with the office or authority entrusted with administrative and enforcement shall not have any substantial interest in the outcome of the matter.
2. Each Party shall ensure that, before such tribunals or procedures the parties have the right to:
(a) A reasonable opportunity to defend or support their respective positions; and
(b) A resolution or decision based on the evidence and submissions, or in cases where required by its domestic law, on the record compiled by the administrative authority.
3. Each Party shall ensure subject to further appeal or review as provided in its domestic legislation that such decisions or rulings shall be implemented by and shall govern the practice of the office or authority with respect to the administrative action that is the subject of the decision.
Article 14.6. Definition
For the purposes of this chapter:
Administrative Ruling of general application means an administrative ruling or interpretation that applies to all persons and that fact generally fall within its scope and establishing a standard of conduct, but does not include:
(a) A determination or ruling made in an administrative proceeding that applies to persons, in particular goods or services of the other party in a specific case; or
(b) Resolution or a ruling that adjudicates with respect to a particular act or practice.
Chapter 15. Administration
Article 15.1. Free Trade Commission
1. The parties establish the Free Trade Commission (Commission), comprising representatives referred to in annex 15.1.1, or persons designated by them.
2. The Commission shall have the following functions: