4. In calculating the value of a procurement with a view to determining whether it is a covered procurement, the procuring entity shall include the total estimated maximum value for the full term of the procurement taking into consideration:
(a) all forms of remuneration, including any bonus, fee, commission, interest or other source of income that may be established under the contract;
(b) the value of any option clause, and
(c) any contract awarded at the same time or during a given period to one or more suppliers under the same procurement.
5. If, due to the nature of the contract, its value cannot be calculated in advance in accordance with the preceding paragraph, the contracting entities shall make an estimate of such value based on objective criteria.
6. In calculating the value of a procurement, a procuring entity shall not break the procurement into separate procurements, nor shall it select or use a special valuation method to calculate the value of the procurement with the intent to exclude it in whole or in part from the application of this Chapter.
Article 12.3. General Exceptions
1. Nothing in this Chapter shall be construed to prevent a Party from taking measures or prohibit it from withholding information that it considers necessary to protect its essential security interests, such as procurement of arms, ammunition or war material, or any other procurement indispensable for national defense or security purposes.
2. Provided that they do not constitute disguised restrictions on international trade or means of arbitrary or unjustifiable discrimination between the Parties, nothing in this Chapter shall be construed to prevent a Party from adopting or applying measures:
(a) necessary to protect public morals, order or safety;
(b) necessary to protect human, animal or plant life or health, including the respective environmental measures;
(c) necessary to protect intellectual property, or
(d) related to the goods or services of handicapped persons, charitable institutions or prison labor.
Article 12.4. General Principles
National Treatment and Non-Discrimination
1. With respect to any measure relating to government procurement covered by this Chapter, each Party, including its procuring entities, shall accord, immediately and unconditionally, to goods and services of the other Party and to suppliers of the other Party offering goods or services of either Party, treatment no less favorable than the most favorable treatment that such Party accords to its own goods, services and suppliers offering such goods and services.
2. With respect to any measure relating to government procurement covered by this Chapter, no Party, including its procuring entities, may:
(a) treat a locally established supplier less favorably than another locally established supplier because of its degree of foreign affiliation or ownership, or
(b) discriminate against a locally established supplier on the basis that the goods or services offered by such supplier for procurement are goods or services of the other Party.
3. The treatment provided for in paragraphs 1 and 2 does not apply to:
(a) customs duties, including tariffs or other charges of any kind imposed on or in connection with importation; the method of collection of such duties and charges; or other import regulations, or
(b) measures affecting trade in services, other than measures specifically regulating government procurement covered by this Chapter.
Special Compensatory Conditions
4. With respect to a covered procurement, no Party, including its procuring entities, may consider, request or impose any special countervailing condition at any stage of a procurement.
Use of Electronic Media
5. The Parties shall endeavor to provide information regarding future procurement opportunities through electronic means.
6. The Parties shall, to the extent possible, encourage electronic bidding for the delivery of procurement documents and the receipt of bids.
7. In procedures carried out by electronic means, the public administration may determine, as a condition of validity and effectiveness, that suppliers execute their actions and attach all documentation, including their bids, in electronic format.
8. When covered procurement is carried out through electronic means, each Party:
(a) ensure that procurement is carried out using information technology systems and software, including those related to authentication and cryptographic encryption of information, that are accessible and interoperable with generally accessible information technology systems and software; and
(b) maintain mechanisms to ensure the security and integrity of requests for participation and bids, as well as the determination of the time of their receipt.
Public Policies
9. Nothing in this Chapter shall prevent a Party from developing new procurement policies, procedures or contractual means, provided that they are consistent with the Chapter.
Execution of the contract
10. Procuring entities shall conduct covered procurement in a transparent and impartial manner that avoids conflicts of interest and prevents corrupt practices.
Bidding Procedures
11. In tendering, procuring entities shall, as a general rule, use an open tendering procedure for covered procurement, except where Article 12.12 applies, provided that the other modalities are recognized by both Parties in accordance with their national legislation, in compliance with this Chapter.
Rules of Origin
12. For purposes of the treatment provided for in paragraphs 1 and 2, each Party shall apply to covered government procurement of goods the rules of origin that it applies in the normal course of trade in such goods. For clarity, rules of origin that apply in the normal course of trade are understood to be non-preferential rules of origin, in accordance with Article 1.2 of the WTO Agreement on Rules of Origin.
Denial of Benefits
13. For purposes of the treatment provided for in paragraphs 1 and 2, either Party may deny benefits under this Chapter, after notification and consultations, to service suppliers of the other Party if the service supplier:
(a) is not a person of the other Party as defined in this Chapter, or
(b) supplies the service from or in the territory of a non-Party.
Article 12.5. Information on the Procurement System
Each Party shall:
(a) publish, without delay, any information concerning measures of general application, which specifically regulate a procurement covered by this Chapter, and any modification of such measures, in the same manner as the original publication, in an electronic medium listed in Annex I;
(b) provide information on judicial and administrative decisions of general application, and
(c) provide clarifications to the other Party, when requested.
Article 12.6. Public Procurement Notices
1. For each procurement covered by this Chapter, procuring entities shall publish, in advance, a notice inviting interested suppliers to submit tenders in the procurement or, whenever appropriate, applications to participate in the procurement, except as provided in Article 12.4.
2. Each procurement notice shall include at least the following information:
(a) the description of public procurement;
(b) the method of procurement to be used;
(c) any conditions that suppliers must satisfy in order to participate in the procurement, unless this information is included in the procurement documents made available to all interested suppliers at the same time as the notice of intended procurement;
(d) the name of the contracting entity publishing the notice;
(e) the address or point of contact where suppliers can obtain all relevant procurement documentation;
(f) the address and final date for submission of bids;
(g) the dates of delivery of the goods or services to be contracted or the duration of the contract, unless this information is included in the contracting documents, and
(h) an indication that the procurement is covered by this Chapter.
3. Procuring entities shall publish procurement notices through means that provide the widest possible non-discriminatory access to interested suppliers of the Parties. Access to such notices shall be available through one of the electronic addresses specified in Annex I during the entire period established for the submission of tenders for the relevant procurement.
Notice of Hiring Plans
4. Each Party shall encourage its procuring entities to publish, in an electronic medium listed in Annex I, as early as practicable in each fiscal year, a notice regarding its future procurement plans. Such notices shall include the subject matter to be procured and the estimated period in which the procurement will be conducted.
Article 12.7. Conditions for Participation In the Bidding Process
1. When a procuring entity requires suppliers to comply with registration, qualification or any other condition for participating in procurement proceedings, the procuring entity shall publish a notice inviting suppliers to apply. The procuring entity shall publish the notice sufficiently in advance to allow interested suppliers sufficient time to prepare and submit their applications, and for the procuring entity to evaluate and make its determinations on the basis of such applications.
2. Each procuring entity shall:
(a) limit the conditions for participation to those that are essential to ensure that the potential supplier has the legal, commercial, technical and financial capacity to comply with the requirements and technical requirements of public procurement, which will be evaluated on the basis of the supplier's overall business activities. For greater certainty, the contracting entities may require suppliers to prove strict compliance with their tax obligations;
(b) base its qualification decisions solely on the conditions for participation that it has specified in advance in the notices or bidding documents; and
(c) recognize as qualified all suppliers of the Parties that meet the conditions for participating in government procurement covered by this Chapter.
3. Procuring entities may establish publicly available standing lists of suppliers qualified to participate in procurement. Where a procuring entity requires suppliers to qualify on such a list in order to participate in procurement, and a supplier that has not yet qualified applies to be placed on the list, the Parties shall use their best efforts to ensure that the procedure for registration on the list is initiated without delay and to enable the supplier to participate in the procurement, provided that the registration procedures can be completed within the deadline for submission of tenders.
4. No procuring entity may impose as a condition for a supplier to participate in a procurement that the supplier has previously been awarded one or more contracts by a procuring entity of that Party or that the supplier has previous work experience in the territory of that Party.
5. A procuring entity shall promptly communicate to any supplier that has applied to qualify its decision as to whether the supplier is qualified. Where a procuring entity rejects an application for qualification or ceases to recognize a supplier as qualified, the procuring entity shall promptly notify any supplier that has applied to qualify of its decision as to whether the supplier is qualified.
If the procuring entity so decides, the procuring entity shall, upon request of the supplier, promptly provide the supplier with a written explanation of the reasons for its decision.
6. Nothing in this Article shall prevent a procuring entity from excluding a supplier from a procurement for reasons such as bankruptcy, liquidation or insolvency, misrepresentation in a procurement proceeding, or significant deficiencies in the performance of an obligation under a prior procurement contract.
Article 12.8. Supplier Qualification
Multiple Use List
1. Parties whose procuring entities use lists or permanent registers of qualified suppliers shall ensure that:
(a) suppliers of the other Party may apply for registration, qualification or qualification under the same conditions as domestic suppliers;
(b) all suppliers who so request are included in such lists or registers as soon as possible and without undue delay, and
(c) all suppliers included in the lists or registers are notified of the temporary suspension or cancellation of such lists or registers or of their removal from such lists or registers.
2. When inclusion in a list or registry of suppliers is required, the objective should be none other than the accreditation of suitability to contract with the State, without hindering the entry of interested parties from the other Party.
3. Registration in one of the Parties for bidders of the other Party shall be carried out through the presentation of equivalent documentation and in accordance with the national legislation of the contracting entity.
4. The Parties shall develop common qualification criteria for mutual recognition of certificates issued by their respective national supplier registries.
5. In accordance with their respective national legislation, the Parties may dispense with consular legalization of documents in procedures relating to government procurement covered by this Chapter.
6. In accordance with their respective national legislation, the Parties may waive the requirement of a translation by a public translator in procedures relating to government procurement covered by this Chapter, when the original documents originate from such Parties.
7. The Parties may require a translation by a certified translator, when this is indispensable in the event of administrative or judicial litigation.
8. The Party that uses a list or registry of suppliers shall ensure that suppliers of the other Party have access to all information relating to the authorized registries and the requirements for access thereto, in order to participate in procurement processes. To this end, the Parties shall detail the current and necessary records used by the other Party, for access to its public procurements.
9. The Parties undertake to adapt their lists or registers of suppliers to ensure access to them by suppliers of the other Party.
Article 12.9. Technical Specifications and Documents
1. No contracting entity shall prepare, adopt or apply technical specifications or require any conformity assessment procedure with the purpose or effect of creating unnecessary obstacles to trade between the Parties.
2. In establishing the technical specifications for the goods or services to be procured, the procuring entity shall, as appropriate:
(a) specify them in terms of performance and functional requirements, rather than descriptive or design characteristics, and
(b) base them on international standards, when applicable, or otherwise on national technical regulations, recognized national standards, or building codes.
3. A procuring entity shall not prescribe technical specifications that require or refer to a trademark or trade name, patent, copyright, design or type, specific origin or producer or supplier, unless there is no sufficiently precise or intelligible way of otherwise describing the procurement requirements, and provided that expressions such as "or equivalent" are included in the procurement documentation.
4. A procuring entity shall not solicit or accept, in a manner that may have the effect of precluding competition, advice that could be used in the preparation or adoption of any technical specification for a specific procurement, from a person who may have a commercial interest in that procurement.
5. For greater certainty, this Article shall not prevent contracting entities from preparing, adopting or applying technical specifications to contribute to the conservation of natural resources or to protect the environment.
Article 12.10. Procurement Documents
1. Procuring entities shall provide suppliers with all necessary information to enable them to prepare and submit appropriate tenders.
2. Procurement documents shall include at a minimum a complete description of the following:
(a) the nature and quantity of goods or services to be contracted or, if the quantity is not known, the estimated quantity and any requirements to be met, including technical specifications, conformity assessment certificates, drawings, designs or instruction manuals;
(b) conditions for supplier participation, including information and documents to be submitted by suppliers in relation to those conditions;
(c) the evaluation criteria to be considered in the award of a contract and, unless price is the sole criterion, the relative importance of such criteria;
(d) the date, time and place of the bid opening;
(e) the date or period for the delivery of the goods or for the supply of the services or the duration of the contract, and
(f) any other terms or conditions, such as payment terms and the manner in which bids are to be submitted.
3. Where a procuring entity does not publish all procurement documents electronically, the procuring entity shall ensure that they are available to any supplier upon request.
4. Where a procuring entity during the course of a procurement modifies the criteria referred to in paragraph 2, it shall transmit such modifications in writing, in accordance with the following:
(a) to all suppliers participating in the procurement at the time of the modification of the criteria, if the identities of such suppliers are known, and otherwise in the same manner as the original information was transmitted, and
(b) with sufficient time to allow such suppliers to modify and resubmit their bids, as appropriate.
5. Procuring entities shall respond promptly to any reasonable request by any supplier for relevant information, provided that the information does not give the supplier an advantage over other suppliers.
Article 12.11. Deadlines
1. Procuring entities shall establish the time limits for the bid submission process in such a way as to give suppliers sufficient time to prepare and submit adequate bids, taking into account the nature and complexity of the procurement.
2. Procuring entities shall allow a minimum period of twenty (20) days between the date on which the notice of intended procurement is published and the final date for the submission of bids.
3. Notwithstanding the provisions of paragraph 2, procuring entities may establish a shorter period, but in no case less than ten (10) days when:
(a) the contracting of common goods or services;
(b) it is a second publication, or
(c) for reasons of urgency duly justified by the procuring entity, it is unable to comply with the minimum time limit set forth in paragraph 2.
4. A Party may provide that a procuring entity may reduce by five (5) days the deadline for submitting tenders set forth in paragraph 2 for each of the following circumstances, when:
(a) the notice of future procurement is published electronically;
(b) all procurement documents that are made available to the public by electronic means are published from the date of publication of the procurement notice, or
(c) bids may be received through electronic means by the contracting entity.
5. The application of paragraphs 3 and 4 may not result in the reduction of the time limits set forth in paragraph 2 to less than ten (10) days from the date of publication of the procurement notice.
Article 12.12. Contracting Modalities
Open Bidding
1. Procuring entities shall award contracts through open bidding procedures as a general rule, through which any interested supplier of the Parties may submit a bid.
Selective Bidding
2. Where the law of a Party permits selective tendering, procuring entities shall, for each procurement:
(a) publish a notice inviting suppliers to submit applications to participate in procurement with sufficient advance notice for interested suppliers to prepare and submit applications and for the procuring entity to evaluate and make its determination based on such applications, and
(b) permit all domestic suppliers and all suppliers of the other Party that the procuring entity has determined to be in compliance with the conditions for participation to submit a tender, unless the procuring entity has established in the notice or in the publicly available procurement documents any limitation on the number of suppliers permitted to submit tenders and the criteria for such limitation.
3. Procuring entities that maintain publicly available standing lists of qualified suppliers may select suppliers included in such lists to be invited to submit tenders. Any selection shall provide an equitable opportunity to suppliers included in such lists.
Other Procurement Procedures
4. Provided that procuring entities do not use this provision to improperly avoid competition, to protect their domestic suppliers, or to discriminate against suppliers of the other Party, procuring entities may award procurement contracts by means other than open or selective tendering procedures in any of the following circumstances:
(a) provided that the requirements of the procurement documents are not substantially modified, when:
(i) no bid has been submitted or no supplier has requested to participate;
(ii) no bid that complied with the essential requirements of the bidding documents was submitted or the bids submitted were found to be ineligible;
(iii) no supplier has complied with the conditions of participation, or
(b) when the goods or services can be supplied only by one supplier and there is no reasonable alternative, or substitute goods or service due to any of the following reasons:
(i) the contract is for the realization of a work of art;
(ii) the procurement is related to the protection of patents, copyrights or other exclusive rights, or
(iii) due to the absence of competition for technical reasons;
(c) in the case of additional deliveries of goods or services by the original supplier that are intended to be used as spare parts, extensions or continuity of service of existing equipment, software, services or existing facilities, when the change of supplier would force the procuring entity to purchase goods or services that do not meet the requirements of compatibility with existing equipment, software, services or facilities;
(d) for purchases made in a commodity market;
(e) when a procuring entity procures a prototype or an initial good or service that has been developed at its request, in the course of, and for, a particular contract for research, experimentation, study or original development. When such contracts have been fulfilled, subsequent procurements of such goods or services shall be awarded through open or selective bidding procedures;
(f) when, in the case of public works, additional construction services are required in addition to those originally contracted, which respond to unforeseen circumstances and are strictly necessary for the fulfillment of the
objectives of the contract that originated them. However, the total value of contracts awarded for such additional construction services may not exceed 50% of the amount of the main contract;
(g) in the case of a contract for works, services or supplies corresponding to the performance or termination of a contract that should have been terminated or terminated in advance due to lack of performance by the contracting party or other causes;
(h) to the extent strictly necessary, when for reasons of extreme urgency or due to events unforeseen by the procuring entity, and only for goods required to meet the urgent situation and portions of works and services that can be completed within a period of time that justifies the urgency, the goods or services cannot be obtained in time through open or, as appropriate, selective bidding, and the use of such procedures could result in serious prejudice to the procuring entity;
(i) when the contract is awarded to the winner of a design competition, provided that:
(i) the competition has been organized in a manner that is consistent with the principles of this Chapter, in particular with respect to the publication of the notice of the procurement, and
(ii) the participants are graded or evaluated by independent juries or bodies;
(j) when any procuring entity needs to contract for consulting services involving matters of a confidential nature, the disclosure of which could reasonably be expected to compromise confidential government information, cause economic instability or otherwise be contrary to the public interest, or