Rules of Origin
8. A Party shall not apply to covered procurement of goods or services imported or supplied from the other Party rules of origin that are different compared to the rules of origin it applies at the same time in the normal course of trade to imports or supplies of the same goods or services from the same Party.
Offsets
9. With regard to covered procurement and subject to Annexes 9-A (Coverage of Government Procurement for the Union) and 9-B (Coverage of Government Procurement for Viet Nam), a Party, including its procuring entities, shall not seek, take account of, impose or enforce any offset.
Measures Not Specific to Procurement
10. Paragraphs 1 and 2 do not apply to:
(a) customs duties and charges of any kind imposed on, or in connection with, importation;
(b) the method of levying such duties and charges; and
(c) other import regulations or formalities and measures affecting trade in services other than measures governing covered procurement.
Article 9.5. Information on the Procurement System
1. Each Party shall:
(a) promptly publish any measure of general application, including standard contract terms mandated by law or regulation, regarding covered procurement in officially designated paper or electronic medium; and
(b) provide upon request of the other Party, to the extent possible, an explanation thereof.
2. 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) lists the paper or electronic medium through which the Party publishes the information described in paragraph 1 and the notices required by Article 9.6 (Notices), paragraph 7 of Article 9.8 (Qualification of Suppliers) and paragraph 3 of Article 9.17 (Post-Award Information).
Article 9.6. Notices Notice of Intended Procurement
1. For each covered procurement, except in the circumstances referred to in Article 9.14 (Limited Tendering), a procuring entity shall publish a notice of intended procurement 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). A notice published in an electronic medium shall remain available at least until expiration of the time period indicated in the notice. The notices shall:
(a) for procuring entities covered by Section A (Central Government Entities), be accessible by electronic means free of charge through a single point of access specified in Section H (Publication of Procurement Information); and
(b) for procuring entities covered by Section B (Sub-Central Government Entities) or C (Other Covered Entities), where accessible by electronic means, be provided, at least, through links in a single gateway electronic site that is accessible free of charge.
The Parties, including their procuring entities covered by Section B (Sub-Central Government Entities) or C (Other Covered Entities), are encouraged to publish their notices by electronic means free of charge through a single point of access.
2. Except as otherwise provided for in this Chapter, each notice of intended procurement shall include:
(a) the name and address of the procuring entity and other information necessary to contact the procuring entity and obtain all relevant documents relating to the procurement, including information on the cost and terms of payment for obtaining those documents, if any;
(b) a description of the procurement, including the nature and the quantity of the goods or services to be procured or, where the quantity is not known, the estimated quantity;
(c) if possible, for recurring contracts, an estimate of the timing of subsequent notices of intended procurement;
(d) where appropriate, a description of any options;
(e) the time frame for delivery of goods or services or the duration of the contract;
(f) the procurement method that will be used and, where appropriate, whether it will involve negotiation or electronic auction;
(g) where applicable, the address and any final date for the submission of requests for participation in the procurement;
(h) the address and final date for the submission of tenders;
(i) the language or languages in which tenders or requests for participation may be submitted, if they may be submitted in a language other than the official language at the place of the procuring entity;
(j) a list and brief description of any conditions for participation of suppliers, including, where appropriate, any requirements for specific documents or certifications to be provided by suppliers in connection therewith, unless such requirements are included in tender documentation that is made available to all interested suppliers at the same time as the notice of intended procurement;
(k) where, pursuant to Article 9.8 (Qualification of Suppliers), a procuring entity intends to select a limited number of qualified suppliers to be invited to tender, the criteria that will be used to select them and, where applicable, any limitation on the number of suppliers that will be permitted to tender; and
(l) an indication that the procurement is covered by this Chapter.
Summary Notice
3. For each case of intended procurement, a procuring entity shall publish a summary notice in English that is readily accessible free of charge through an 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), at the same time as the publication of the notice of intended procurement. The summary notice shall contain at least the following information:
(a) the subject-matter of the procurement;
(b) the final date for the submission of tenders or, where applicable, any final date for the submission of requests for participation in the procurement or for inclusion on a multi-use list; and
(c) the address from which documents relating to the procurement may be requested.
4, The Union shall provide technical and financial assistance to Viet Nam in order to develop, establish and maintain an automatic system for the translation and publication of summary notices in English. This cooperation is addressed in Article 9.21 (Cooperation). The implementation of this paragraph is subject to the realisation of the initiative on technical and financial assistance for the development, establishment and maintenance of an automatic system for the translation and publication of summary notices in English in Viet Nam.
Notice of Planned Procurement
5. Procuring entities are encouraged to publish as early as possible in each fiscal year a notice regarding their future procurement plans (hereinafter referred to as "notice of planned procurement"), which should include the subject-matter of the procurement and the planned date of the publication of the notice of intended procurement.
6. A procuring entity covered by Section B (Sub-Central Government Entities) or C (Other Covered Entities) may use a notice of planned procurement as a notice of intended procurement provided that the notice of planned procurement includes as much of the information referred to in paragraph 2 as is available to the procuring entity, and a statement that interested suppliers should express their interest in the procurement to the procuring entity.
Article 9.7. Conditions for Participation
1. A procuring entity shall limit any conditions for participation in a covered procurement to those that ensure that a supplier has the legal and financial capacities and the commercial and technical abilities to undertake that procurement.
2. In establishing the conditions for participation, a procuring entity:
(a) shall not impose the condition that, in order for a supplier to participate in a procurement, the supplier has previously been awarded one or more contracts by a procuring entity of a given Party or that the supplier has prior work experience in the territory of that Party;
(b) may require relevant prior experience where essential to meet the requirements of the procurement.
3. In assessing whether a supplier satisfies the conditions for participation, the procuring entity:
(a) shall evaluate the financial capacity and the commercial and technical abilities of a supplier on the basis of that supplier's business activities both inside and outside the territory of the Party of the procuring entity; and
(b) shall base its evaluation solely on the conditions that the procuring entity has specified in advance in notices or tender documentation.
4. Where there is supporting evidence, a Party, including its procuring entities, may exclude a supplier on grounds such as:
(a) bankruptcy;
(b) false declarations;
(c) significant or persistent deficiencies in performance of any substantive requirement or obligation under a prior contract or contracts;
(d) final judgments by a judicial court in respect of serious crimes or other serious offences;
(e) evidence of serious professional misconduct; or
(f) failure to pay taxes.
Article 9.8. Qualification of Suppliers
Registration Systems and Qualification Procedures
1. A Party may maintain a supplier registration system under which interested suppliers are required to register and provide certain information.
2. Each Party shall ensure that:
(a) its procuring entities make efforts to minimise differences in their qualification procedures; and
(b) where its procuring entities maintain registration systems, the entities make efforts to minimise differences in their registration systems.
3. A Party shall not adopt or apply any registration system or qualification procedure:
(a) with the purpose or the effect of creating unnecessary obstacles to the participation of suppliers of the other Party in its procurement; or
(b) use such registration system or qualification procedure to prevent or delay the inclusion of suppliers of the other Party on a list of suppliers or to prevent such suppliers from being considered for a particular procurement.
Selective Tendering
4. Where a procuring entity intends to use selective tendering, the procuring entity shall:
(a) include in the notice of intended procurement at least the information specified in subparagraphs 2(a), 2(b), 2(f), 2(g), 2(), 2(k) and 2() of Article 9.6 (Notices) and invite suppliers to submit a request for participation; and
(b) provide, by the commencement of the time period for tendering, at least the information in subparagraphs 2(c), 2(d), 2(), 2(h) and 2(i) of Article 9.6 (Notices) to the qualified suppliers that it notifies as specified in subparagraph 3(b) of Article 9.12 (Time Periods).
5. The procuring entity shall:
(a) publish the notice sufficiently in advance of the procurement to allow for interested suppliers to request participation in the procurement; and
(b) allow all qualified suppliers to submit a tender, unless the procuring entity has stated in the notice of intended procurement a limitation on the number of suppliers that will be permitted to tender and the criteria for selecting the limited number of suppliers.
6. Where the tender documentation is not made publicly available from the date of publication of the notice referred to in paragraph 4, a procuring entity shall ensure that those documents are made available at the same time to all the qualified suppliers selected in accordance with paragraph 5.
Multi-Use Lists
7. A procuring entity may maintain a multi-use list of suppliers, provided that a notice inviting interested suppliers to apply for inclusion on the list is:
(a) published annually; and
(b) where published by electronic means, made available continuously,
in the appropriate 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).
8. The notice provided for in paragraph 7 shall include:
(a) a description of the goods or services, or categories thereof, for which the list may be used;
(b) the conditions for participation to be satisfied by suppliers for inclusion on the list and the methods that the procuring entity will use to verify that a supplier satisfies the conditions;
(c) the name and address of the procuring entity and other information necessary to contact the procuring entity and obtain all relevant documents relating to the list;
(d) the period of validity of the list and the means for its renewal or termination, or where the period of validity is not provided, an indication of the method by which notice will be given of the termination of use of the list; and
(e) an indication that the list may be used for procurement covered by this Chapter.
9. Notwithstanding paragraph 7, where a multi-use list is valid for three years or less, a procuring entity may publish the notice referred to in paragraph 7 only once, at the beginning of the period of validity of the list, provided that the notice:
(a) states the period of validity and that further notices will not be published; and
(b) is published by electronic means and is made available continuously during the period of its validity.
10. A procuring entity shall allow all suppliers included in a multi-use list to submit tenders for a relevant procurement.
11. A procuring entity shall allow suppliers to apply at any time for inclusion on a multi-use list and shall include on the list all qualified suppliers within a reasonably short time.
12. Where a supplier that is not included on a multi-use list submits a request for participation in a procurement based on a multi-use list and all required documents within the time period provided for in paragraph 2 of Article 9.12 (Time Periods), a procuring entity shall examine the request. The procuring entity shall not exclude the supplier from consideration in respect of the procurement on the grounds that the procuring entity has insufficient time to examine the request, unless, in exceptional cases, due to the complexity of the procurement, the procuring entity is not able to complete the examination of the request within the time period allowed for the submission of tenders.
Sub-Central Government and other Covered Entities
13. 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) may use a notice inviting suppliers to apply for inclusion on a multi-use list as a notice of intended procurement, provided that:
(a) the notice is published in accordance with paragraph 7 and includes the information required under paragraph 8, as much of the information required under paragraph 2 of Article 9.6 (Notices) as is available, and a statement that it constitutes a notice of intended procurement or that only the suppliers on the multi-use list will receive further notices of procurement covered by the multi-use list; and
(b) the procuring entity promptly provides to suppliers that have expressed an interest in a given procurement to the procuring entity sufficient information to permit them to assess their interest in the procurement, including all remaining information required under paragraph 2 of Article 9.6 (Notices), to the extent such information is available.
14. 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) may allow a supplier that has applied for inclusion on a multi-use list in accordance with paragraph 11 to tender in a given procurement where there is sufficient time for the procuring entity to examine whether the supplier satisfies the conditions for participation.
Information on Procuring Entity Decisions
15. A procuring entity shall promptly inform any supplier that submits a request for participation in a procurement or application for inclusion on a multi-use list of the procuring entity's decision with respect to the request or application.
16. Where a procuring entity rejects a supplier's request for participation in a procurement or application for inclusion on a multi-use list, ceases to recognise a supplier as qualified, or removes a supplier from a multi-use list, the procuring entity shall promptly inform the supplier and, on request of the supplier, promptly provide the supplier with a written explanation of the reasons for its decision.
Article 9.9. 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 the effect of creating an unnecessary obstacle to trade between the Parties.
2. In prescribing the technical specifications for the goods or services being procured, a procuring entity shall, where appropriate:
(a) set out the technical specification in terms of performance and functional requirements, rather than design or descriptive characteristics; and
(b) base the technical specification on international standards, where they exist; otherwise, on national technical regulations, recognised national standards or building codes.
3. Where design or descriptive characteristics are used in the technical specifications, a procuring entity shall indicate that it will consider tenders of equivalent goods or services that demonstrably fulfil the requirements of the procurement by including words such as "or equivalent" in the tender documentation.
4. 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 such cases, the procuring entity includes words such as "or equivalent" in the tender documentation.
5. 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.
6. For greater certainty, a Party, including its procuring entities, may, in accordance with this Article, prepare, adopt or apply technical specifications to promote the conservation of natural resources or protect the environment.
Article 9.10. Market Consultations
1. Before launching a procurement, procuring entities may conduct market consultations with a view to preparing the procurement, notably for the development of technical specifications, provided that, where market research is performed by a supplier in the context of covered procurement, such procurement is subject to the provisions of this Chapter.
2. For that purpose, procuring entities may seek or accept advice from independent experts or authorities or from market participants. That advice may be used in the planning and conduct of the procurement procedure, provided that it does not have the effect of distorting competition and does not result in a violation of the principles of non-discrimination and transparency.
Article 9.11. Tender Documentation
Tender Documentation
1. A procuring entity shall promptly make available or provide upon request to suppliers tender documentation that includes all information necessary to permit suppliers to prepare and submit responsive tenders. Unless already provided in the notice of intended procurement, such documentation shall include a complete description of:
(a) the procurement, including the nature and quantity of the goods or services to be procured or, where 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 of suppliers, including a list of information and documents that suppliers are required to submit in connection with the conditions for participation;
(c) all evaluation criteria to be applied in the awarding of the contract and, except where price is the sole criterion, the relative importance of such criteria;
(d) where the procuring entity will conduct the procurement by electronic means, any authentication and encryption requirements or any other requirements related to the submission of information by electronic means, provided that there are such requirements;
(e) where the procuring entity will hold an electronic auction, the rules, including identification of the elements of the tender related to the evaluation criteria, according to which the auction will be conducted;
(f) where there will be a public opening of tenders, the date, time and place for the opening of tenders and, if the domestic legislation of a Party stipulates that only certain persons are authorised to be present, the indication of those persons;
(g) any other terms or conditions, including terms of payment and any limitation on the means by which tenders may be submitted, such as whether on paper or by electronic means; and
(h) any dates for the delivery of goods or the supply of services.
2. In establishing any date for the delivery of goods or the supply of services being procured, a procuring entity shall take into account, where appropriate, such factors as the complexity of the procurement, the extent of subcontracting anticipated and the realistic time required for production, de-stocking and transport of goods from the point of supply or for supply of services.
3. The evaluation criteria set out in the notice of intended procurement or tender documentation may include, inter alia, price and other cost factors, quality, technical merit, environmental characteristics and terms of delivery.
4. A procuring entity shall promptly reply to any reasonable request for relevant information by any interested or participating supplier, provided that such information does not give that supplier an advantage over other suppliers.
Modifications
5. If, prior to the award of a contract, a procuring entity modifies the evaluation criteria or requirements set out in the notice of intended procurement or tender documentation provided to participating suppliers, or amends or reissues a notice or tender documentation, it shall transmit in writing all such modifications or amended or re-issued notice or tender documentation:
(a) to all suppliers that are participating at the time of the modification, amendment or re-issuance, if such suppliers are known to the procuring entity, or otherwise publish or provide such documents in the same manner as the original information was made available; and
(b) in adequate time to allow such suppliers to modify their initial tenders and submit amended tenders, as appropriate.
Article 9.12. Time Periods General
1. A procuring entity shall, consistent with its own reasonable needs, provide sufficient time for suppliers to obtain the tender documentation and to prepare and submit requests for participation and responsive tenders, taking into account such factors as:
(a) the nature and complexity of the procurement;
(b) the extent of subcontracting anticipated; and
(c) the time necessary for transmitting tenders by non-electronic means from foreign as well as domestic points where electronic means are not used.
Such time periods, including any extension thereof, shall be the same for all interested or participating suppliers.
Deadlines
2. A procuring entity that uses selective tendering shall establish that the final date for the submission of requests for participation shall not, in principle, be less than 25 days from the date of publication of the notice of intended procurement. In case of a state of urgency, duly substantiated by the procuring entity, that renders this time period impracticable, the time period may be reduced to not less than 10 days.
3. Except as provided for in paragraphs 4, 5 and 7, a procuring entity shall establish that the final date for the submission of tenders shall not be less than 40 days from the date on which:
(a) in the case of open tendering, the notice of intended procurement is published; or
(b) in the case of selective tendering, the procuring entity notifies suppliers that they will be invited to submit tenders, whether or not it uses a multi-use list.
4. A procuring entity may reduce the time period for tendering established in accordance with paragraph 3 to not less than 10 days if:
(a) the procuring entity has published a notice of planned procurement as described in paragraph 5 of Article 9.6 (Notices) at least 40 days and not more than 12 months in advance of the publication of the notice of intended procurement, and the notice of planned procurement contains:
(i) a description of the procurement;
(ii) the approximate final dates for the submission of tenders or requests for participation;
(iii) a statement that interested suppliers should express their interest in the procurement to the procuring entity;
(iv) the address from which documents relating to the procurement may be obtained; and
(v) as much of the information that is required for the notice of intended procurement under paragraph 2 of Article 9.6 (Notices), as is available;
(b) the procuring entity, for recurring contracts, indicates in an initial notice of intended procurement that subsequent notices will provide time periods for tendering based on this paragraph;
(c) the procuring entity procures commercial goods or services; or
(d) a state of urgency, duly substantiated by the procuring entity, renders impracticable the time period for tendering established in accordance with paragraph 3.
5. A procuring entity may reduce the time period for tendering established in accordance with paragraph 3 by five days for each one of the following circumstances: