(a) the notice of intended procurement is published by electronic means;
(b) all 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.
6. The application of paragraph 5, in conjunction with paragraph 4, shall in no case result in a reduced time period for tendering established in accordance with paragraph 3 of less than 10 days from the date on which the notice of intended procurement is published.
7. If a procuring entity covered by Section B (Sub-Central Government Entities) or C (Other Covered Entities) of Annexes 9-A (Coverage of Government Procurement for the Union) and 9-B (Coverage of Government Procurement for Viet Nam) has selected all or a limited number of qualified suppliers, the time period for tendering may be fixed by mutual agreement between the procuring entity and the selected suppliers. In the absence of agreement, the period shall not be less than 10 days.
Article 9.13. Negotiations
1. With regard to covered procurement, a Party may provide for its procuring entities to conduct negotiations:
(a) if the procuring entity has indicated its intent to conduct negotiations in the notice of intended procurement required under paragraph 2 of Article 9.6 (Notices); or
(b) if 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.
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 9.14. Limited Tendering
1. Provided a procuring entity does not use limited tendering for the purpose of avoiding competition among suppliers or in a manner that discriminates against suppliers of the other Party or protects domestic suppliers, a procuring entity may use limited tendering and may choose not to apply Articles 9.6 (Notices), 9.7 (Conditions for Participation), 9.8 (Qualification of Suppliers), 9.10 (Market Consultations), 9.11 (Tender Documentation), 9.12 (Time Periods), 9.13 (Negotiations) and 9.15 (Electronic Auctions) only under any of the following circumstances:
(a) if in response to a notice of intended procurement, 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 of the tender documentation;
(iii) no suppliers satisfied the conditions for participation; or
(iv) the tenders submitted have been collusive,
provided that the procuring entity does not substantially modify the essential requirements set out in the tender documentation;
(b) if the goods or services can be supplied only by a particular supplier and no reasonable alternative or substitute goods or services exist for any of the following reasons:
(i) the requirement is for a work of art;
(ii) the protection of patents, copyrights or other exclusive rights; or
(ii) an absence of competition for technical reasons;
(c) for additional deliveries by the original supplier of goods or services that were not included in the initial procurement, if a change of supplier for such additional goods or services:
(i) cannot be made for economic or technical reasons such as requirements of interchangeability or interoperability with existing equipment, software, services or installations procured under the initial procurement or conditions under original supplier warranties; and
(ii) would cause significant inconvenience or substantial duplication of costs for the procuring entity;
(d) insofar as is strictly necessary if, for reasons of extreme urgency brought about by events unforeseeable by the procuring entity, the goods or services could not be obtained in time by means of an open tendering or selective tendering;
(e) for goods purchased on a commodity market or exchange;
(f) when a procuring entity procures a prototype or a first good or service 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 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;
(g) if additional construction services that were not included in the initial contract but were within the objectives of the original tender documentation have, due to unforeseeable circumstances, become necessary to complete the construction services described therein;
(h) for purchases made under exceptionally advantageous conditions that only arise in the very short term in the case of unusual disposals such as those arising from liquidation, receivership or bankruptcy, but not for routine purchases from regular suppliers; or
(i) when a contract is awarded to a winner of a design contest provided that:
(ii) the contest has been organised in a manner that is consistent with the principles of this Chapter, in particular relating to the publication of a notice of intended procurement; and
(iii) the contest is judged by an independent jury with a view to a design contract being awarded to a winner.
2. For each contract awarded in accordance with paragraph 1, a procuring entity shall prepare a report in writing, or maintain a record. The report or record shall include the name of the procuring entity, the value and kind of goods or services procured and a statement indicating the circumstances and conditions described in paragraph 1 that justified the use of limited tendering.
Article 9.15. Electronic Auctions
Where a procuring entity intends to conduct a covered procurement using an electronic auction, the procuring entity shall provide each participant, before commencing the electronic auction, with:
(a) the automatic evaluation method that is based on the evaluation criteria set out in the tender documentation and that will be used in the automatic ranking or re-ranking during the auction; and
(b) any other relevant information relating to the conduct of the auction.
Article 9.16. 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. Where 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
3. 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 notices and tender documentation and be submitted by a supplier that satisfies the conditions for participation.
4. 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 capable of fulfilling the terms of the contract and that, based solely on the evaluation criteria specified in the notices and tender documentation, has submitted:
(a) the most advantageous tender; or
(b) where price is the sole criterion, the lowest price.
5. Where a procuring entity receives a tender with a price that is abnormally lower than the prices in other tenders submitted, it may verify with the supplier that it satisfies the conditions for participation and is capable of fulfilling the terms of the contract.
6. A procuring entity shall not use options, cancel a covered procurement or modify awarded contracts in a manner that circumvents the obligations under this Chapter.
Article 9.17. Post-Award InformationInformation Provided to Suppliers
1. A procuring entity shall promptly inform suppliers that have submitted a tender or application for participation of the procuring entityâs contract award decisions and, on the request of a supplier, shall do so in writing.
2. Subject to paragraphs 2 and 3 of Article 9.18 (Disclosure of Information), a procuring entity shall, on request, provide an unsuccessful supplier with an explanation of the reasons why the procuring entity did not select its tender and, for suppliers meeting the conditions for participation whose tenders pass technical specifications, the relative advantages of the successful supplier's tender.
Publication of Award Information
3. Not later than 30 days after the award of each contract covered by this Chapter, a procuring entity shall publish a notice in the appropriate paper or electronic medium listed in Section H (Publication of Procurement Information) of Annexes 9-A (Coverage of Government Procurement for the Union) and 9-B (Coverage of Government Procurement for Viet Nam). Where the procuring entity publishes the notice only in an electronic medium, the information shall remain readily accessible for a reasonable period of time. The notice shall include at least the following information:
(a) a description of the goods or services procured;
(b) the name and address of the procuring entity;
(c) the name and address of the successful supplier;
(d) the value of the successful tender or the highest and lowest offers taken into account in the award of the contract;
(e) the date of award; and
(f) the type of procurement method used and, in cases where limited tendering was used in accordance with Article 9.14 (Limited Tendering), a brief description of the circumstances justifying the use of limited tendering.
Maintenance of Records
4. Each procuring entity shall maintain:
(a) the documentation, records and reports relating to tendering procedures and contract awards for covered procurement, including the records and reports required under Article 9.14 (Limited Tendering), for a period of at least three years from the date it awards a contract; and
(b) data that ensure the appropriate traceability of the conduct of covered procurement by electronic means.
Statistics
5. The Parties shall endeavour to communicate the available statistical data relevant to the procurement covered by this Chapter.
Article 9.18. Disclosure of Information
Provision of Information
1. On request of the other Party, a Party shall provide promptly any information necessary to determine whether a procurement was conducted fairly, impartially and in accordance with this Chapter, including, where applicable, information on the characteristics and relative advantages of the successful tender. The other Party 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 provide to any supplier information that could prejudice legitimate commercial interests of another supplier or that might prejudice fair competition between suppliers.
3. Nothing in this Chapter shall be construed as requiring a Party, including its procuring entities, authorities and review bodies, to disclose confidential information where 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 9.19. Domestic Review
1. Each Party shall maintain, establish or designate at least one impartial administrative or judicial authority that is independent of its procuring entities to review, in a non-discriminatory, timely, transparent and effective manner, a challenge by a supplier of:
(a) a breach of this Chapter; or
(b) a failure of a procuring entity to comply with a Partyâs measures implementing this Chapter, where the supplier does not have a right to challenge directly a breach of this Chapter under the domestic law of a Party,
arising in the context of a covered procurement, in which the supplier has, or has had, an interest. The procedural rules for all challenges shall be in writing and made generally available.
2. In case of a complaint by a supplier, arising in the context of covered procurement in which the supplier has, or has 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, where 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 any such 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 procedures. Each Party or its procuring entities shall make information on such complaint mechanisms generally available.
3. Each supplier shall be allowed a sufficient period of time to prepare and submit a challenge, which in no case shall be less than 10 days from the time when the basis of the challenge became known or reasonably should have become known to the supplier.
4. Where a body other than an authority referred to in paragraph 1 initially reviews a challenge, the Party shall ensure that the supplier may lodge an appeal against the initial decision with an impartial administrative or judicial authority that is independent of the procuring entity whose procurement is the subject of the challenge.
5. Each Party shall ensure that a review body that is not a court shall have its decision subject to judicial review or have procedures that provide that:
(a) the procuring entity shall respond in writing to the challenge and disclose all relevant documents to the review body;
(b) the participants in the proceedings (hereinafter referred to as "participants") shall have the right to be heard prior to a decision of the review body being made on the challenge;
(c) the participants shall have the right to be represented and accompanied;
(d) the participants shall have access to all proceedings; and
(e) the review body shall make its decisions on a supplier's challenge in a timely manner, in writing, and shall include an explanation of the grounds for each decision.
6. Each Party shall adopt or maintain procedures that provide for:
(a) rapid interim measures, pending the resolution of a challenge, to preserve the supplier's opportunity to participate in the procurement. Such interim measures may result in suspension of the procurement process. The procedures may provide that overriding adverse consequences for the interests concerned, including the public interest, may be taken into account when deciding whether such measures should be applied. Just cause for not acting shall be provided in writing; and
(b) corrective action or compensation for the loss or damages suffered, when a review body has determined that there has been a breach or a failure as referred to in paragraph 1. The compensation for the damages suffered may be limited to either the costs reasonably incurred in the preparation of the tender or in bringing the challenge, or both.
Article 9.20. Modification and Rectification to Coverage
1. A Party shall notify the other Party in writing of any proposed modification or rectification to its coverage (hereinafter referred to as "modification").
2. For any proposed withdrawal of an entity from its coverage in exercise of its rights on the grounds that government control or influence over it has been effectively eliminated, the Party proposing the modification (hereinafter referred to as "modifying Party") shall include in the notification evidence that such government control or influence has been effectively eliminated.
3. Government control or influence over an entity is deemed to be effectively eliminated when the modifying Party, including for the Union its central government entities and its sub-central government entities, and for Viet Nam its central government entities and sub-central government entities:
(a) does not own directly or indirectly more than 50 per cent of the entity's subscribed capital or the votes attached to the shares issued by the entity; and
(b) cannot appoint directly or indirectly more than half of the members of the entity's board of directors or an equivalent body.
4. For any other proposed modification, the modifying Party shall include in the notification information regarding the likely consequences of the change for the mutually agreed coverage provided in this Agreement. Where the modifying Party proposes to make rectifications of a purely formal nature and minor modifications to its coverage not affecting covered procurement, modifications of this kind shall be notified at least every two years.
Proposed modifications of coverage are deemed to constitute rectifications of a purely formal nature and minor modifications to the Party's coverage in the following cases:
(a) changes in the name of a procuring entity;
(b) merger of one or more procuring entities listed in Annex 9-A (Coverage of Government Procurement for the Union) or 9-B (Coverage of Government Procurement for Viet Nam); or
(c) the separation of a procuring entity listed in Annex 9-A (Coverage of Government Procurement for the Union) or 9-B (Coverage of Government Procurement for Viet Nam) into two or more entities that are all added to the procuring entities listed in the same Section of the Annex.
5. The modifying Party may include in its notice an offer of compensatory adjustments for the change to its coverage, if necessary to maintain a level of coverage comparable to that existing prior to the modification. The modifying Party shall not be required to provide compensatory adjustments to the other Party when a proposed modification concerns:
(a) a procuring entity over which it has effectively eliminated its control or influence in respect of covered procurement by that entity; or
(b) rectifications of a purely formal nature and minor modifications to Annex 9-A (Coverage of Government Procurement for the Union) or 9-B (Coverage of Government Procurement for Viet Nam).
Notwithstanding subparagraph (a), should the withdrawal by a modifying Party of a significant number of procuring entities from its coverage on the ground that these entities are no longer under government control or influence in accordance with the criteria set out in paragraph 3 result in a significant imbalance of coverages agreed between the Parties, the modifying Party shall accept to enter into consultations with the other Party to discuss, without prejudice, the modalities for redressing such imbalance.
6. The other Party shall notify the modifying Party of any objection to the proposed modification within 45 days of the notification.
7. If the other Party notifies an objection, both Parties shall seek to resolve the issue through consultations. During the consultations, the objecting Party may request further information with a view to clarifying the proposed modification, including the nature of any government control or influence.
8. If the consultations under paragraph 7 do not resolve the issue, the Parties may use the dispute settlement mechanism provided for in Chapter 15 (Dispute Settlement).
9. A proposed modification shall become effective only if:
(a) the other Party has not submitted to the modifying Party a written objection to the proposed modification within 45 days from the date of the notification of the proposed modifications;
(b) the Parties have reached an agreement; or
(c) an arbitration panel has issued a final report in accordance with Article 15.11 (Final Report) concluding that the Parties shall give effect to the proposed modification.
Article 9.21. Cooperation
1. The Parties recognise their shared interest in cooperating in the promotion of international liberalisation of government procurement markets with a view to achieving enhanced understanding of their respective government procurement systems and to improving access to their respective markets.
2. Without prejudice to paragraph 4 of Article 9.6 (Notices), the Parties shall endeavour to cooperate in matters such as:
(a) exchanging experiences and information, such as regulatory frameworks and best practices;
(b) developing and expanding the use of electronic means in government procurement systems;
(c) building capability of government officials in best government procurement practices; and
(d) institutional strengthening for the fulfilment of the provisions of this Chapter.
Article 9.22. Future Negotiations Procurement by Electronic Means
1. The Parties shall review the provisions of Article 9.15 (Electronic Auctions) once Viet Nam's electronic procurement system has been fully developed to take into account possible technological changes and in particular to consider other aspects such as the mathematical formula used for the automatic evaluation method and the possible communication of the results of any initial evaluation to the participants in the auction.
2. The Parties shall conduct further negotiations on the duration of the period for the storage of data relating to procurement by electronic means once Viet Namâs electronic procurement system is operational.
Market Access
3. The Parties shall conduct further negotiations on the coverage of additional sub-central government entities no later than 15 years after the date of the entry into force of this Agreement.
Article 9.23. Committee on Investment, Services, Electronic Commerce and Government Procurement
The Committee on Investment, Services, Electronic Commerce and Government Procurement established pursuant to Article 17.2 (Specialised Committees) shall be responsible for the implementation of this Chapter. It may, in particular:
(a) discuss the exchange of statistical data in accordance with paragraph 5 of Article 9.17 (Post-Award Information);
(b) review pending notifications of modifications to coverage and approve the revised list of procuring entities in Sections A (Central Government Entities) to C (Other Covered Entities) of Annexes 9-A (Coverage of Government Procurement for the Union) and 9-B (Coverage of Government Procurement for Viet Nam);
(c) approve the compensatory adjustments resulting from modifications affecting coverage;
(d) consider issues regarding government procurement that are referred to it by a Party; and
(e) discuss any other matters related to the operation of this Chapter.
Chapter 10. Competition Policy
Section A. Anti-competitive Conduct
Article 10.1. Principles
The Parties recognise the importance of undistorted competition in their trade and investment relations. The Parties acknowledge that anti-competitive conduct has the potential to distort the proper functioning of markets and undermine the benefits of trade liberalisation.
Article 10.2. Legislative Framework
1. Each Party shall adopt or maintain comprehensive legislation on competition that proscribes anti-competitive conduct, with the objective of promoting economic efficiency and consumer welfare, and shall take appropriate action with respect to such conduct.
2. The competition law of the Parties shall, in their respective territories, effectively address:
(a) agreements between enterprises, decisions by associations of enterprises and concerted practices which have as their object or effect the prevention, restriction or distortion of competition;
(b) abuses by one or more enterprises of a dominant position, and concentrations between enterprises which would significantly impede effective competition.
Article 10.3. Implementation
1. Each Party shall maintain its autonomy in developing and enforcing its competition law.
2. Each Party shall maintain authorities which are responsible for the full application and the effective enforcement of its competition law and ensure that they are appropriately equipped and have the powers necessary for fulfilling their responsibilities.
3. All enterprises, private or public, shall be subject to the competition law referred to in Article 10.2 (Legislative Framework).
4. Each Party shall apply its competition law in a transparent and non-discriminatory manner, including to private and public enterprises, respecting the principles of procedural fairness and rights of defence of the enterprises concerned.