(e) “in writing or written” means any worded or numbered expression that can be read, reproduced, and later communicated, including electronically transmitted and stored information;
(f) “limited tendering” means a procurement procedure whereby the procuring entity contacts a supplier or suppliers of its choice;
(g) “measure” means any law, regulation, procedure, administrative guidance or practice, or any action of a procuring entity relating to a covered procurement;
(h) “multi-use list” means a list of suppliers that a procuring entity has determined satisfy the conditions for participation in that list, and that the procuring entity intends to use more than once;
(i) “notice of intended procurement” means a notice published by a procuring entity inviting interested suppliers to submit a request for participation, a tender, or both;
(j) “notice of planned procurement” means a notice published by a procuring entity regarding its future procurement plans;
(k) “offset” means any condition or undertaking that encourages local development or improves a State Party’s balance-of-payments accounts, such as the use of domestic content, the licensing of technology, investment, counter-trade, and similar actions or requirements;
(l) “open tendering” means a procurement procedure where all interested suppliers may submit a tender;
(m) “person” means a natural person or a juridical person;
(i) “natural person” means a person who has the nationality, or is a permanent resident, of a State Party in accordance with its applicable law;
(ii) “juridical person” means any legal entity duly constituted or otherwise organised under applicable law, whether for profit or otherwise, and whether privately-owned or governmentally owned, including any corporation, trust, partnership, joint venture, sole proprietorship or association;
(n) “procuring entity” means an entity covered under Appendices 1 to 3 to Annex XVIII (Government Procurement);
(o) “qualified supplier” means a supplier that a procuring entity recognises as having satisfied the conditions for participation;
(p) “selective tendering” means a procurement procedure whereby only qualified suppliers are invited by the procuring entity to submit a tender;
(q) “services” includes construction services as defined in subparagraph (b), unless otherwise specified;
(r) “standard” means a document approved by a recognised body, that provides for common and repeated use, rules, guidelines, or characteristics for goods or services, or related processes and production methods, with which compliance is not mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking, or labelling requirements as they apply to a good, service, process, or production method;
(s) “supplier” means a person or group of persons that provides or could provide goods or services; and
(t) “technical specification” means a tendering requirement that:
(i) lays down the characteristics of goods or services to be procured, including quality, performance, safety and dimensions, or the processes and methods for their production or provision; or
(ii) addresses terminology, symbols, packaging, marking, or labelling requirements, as they apply to goods or services.
Article 11.2. Scope and Coverage
1. This Chapter applies to covered procurement for governmental purposes:
(a) of goods, services, or any combination thereof:
(i) as specified in the Appendices to Annex XVIII (Government Procurement); and
(ii) not procured with a view to commercial sale or resale, or for use in the production or supply of goods or services for commercial sale or resale;
(b) by any contractual means, including purchase, lease, rental or hire purchase, with or without an option to buy;
(c) for which the value, as estimated in accordance with the rules specified in Article 11.3 (Valuation of Contracts) and Appendix 9 to Annex XVIII (Government Procurement) equals or exceeds the relevant threshold specified in Appendices 1 to 3 to Annex XVIII (Government Procurement) at the time of publication of a notice in accordance with Article 11.12 (Notices);
(d) by a procuring entity as specified in the Appendices to Annex XVIII (Government Procurement); and
(e) that is not otherwise excluded from coverage pursuant to paragraph 2 or Annex XVIII (Government Procurement).
2. This Chapter does not apply to:
(a) acquisition or rental of land, existing buildings, or other immovable property or the rights thereon;
(b) non-contractual agreements or any form of assistance that a State Party provides, including cooperative agreements, grants, loans, equity infusions, guarantees and fiscal incentives;
(c) procurement or acquisition of fiscal agency or depository services, liquidation and management services for regulated financial institutions or services related to sale, redemption and distribution of public debt, including loans and government bonds, notes and other securities;
(d) public employment contracts;
(e) procurement conducted:
(i) for the specific purpose of providing international assistance, including development aid;
(ii) under a particular procedure or condition of an international agreement relating to the stationing of troops or relating to the joint implementation by the signatory countries of a project; or
(iii) under a particular procedure or condition of an international organisation, or funded by international grants, loans or other assistance where the applicable procedure or condition would be inconsistent with this Chapter.
Article 11.3. Valuation of Contracts
1. In estimating the value of a procurement for the purpose of ascertaining whether it is a covered procurement, a procuring entity shall:
(a) neither divide a procurement into separate procurements nor use a particular method for estimating the value of a procurement with the intention of totally or partially excluding it from the application of this Chapter; and
(b) include the estimated maximum total value of the procurement over its entire duration, taking into account all forms of remuneration, including:
(i) premiums, fees, commissions, interest; and
(ii) where the procurement provides for the possibility of option clauses, the total value of such options.
2 Where an individual requirement for a procurement results in the award of more than one contract, or in the award of contracts in separate parts (hereinafter referred to as "recurring contracts"), the calculation shall be based on the estimated maximum total value of the procurement. The estimation of the maximum total value may be based on:
(a) the value of recurring contracts of the same type of good or service awarded during the preceding 12 months or the procuring entity's preceding fiscal year, adjusted, where possible, to take into account anticipated changes in the quantity or value of the good or service being procured over the following 12 months; or
(b) the estimated value of recurring contracts of the same type of good or service to be awarded during the 12 months following the initial contract award or the procuring entity's fiscal year.
3. Where a State Party's domestic laws and regulations allow for contracts to be concluded for an indefinite period and a total price is not specified, the basis for valuation of such contracts shall be based on the estimated monthly instalment multiplied by 48.
Article 11.4. Security and General Exceptions
1. Nothing in this Chapter shall be construed to prevent a State Party from taking any action or not disclosing any information that it considers necessary for the protection of its essential security interests relating to the procurement of arms, ammunition, or war materials, or to procurement indispensable for national security or for national defence purposes.
2. Subject to the requirement that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between the State Parties where the same conditions prevail or a disguised restriction on trade between the State Parties, nothing in this Chapter shall be construed to prevent a State Party from imposing or enforcing measures:
(a) necessary to protect public morals, order or safety;
(b) necessary to protect human, animal or plant life or health, including environmental measures;
(c) necessary to protect intellectual property; or
(d) relating to goods or services of persons with disabilities, philanthropic institutions, or prison labour.
Article 11.5. National Treatment and Non-Discrimination
1. With respect to any measure related to covered procurement:
(a) Each EFTA State, including its procuring entities, shall accord immediately and unconditionally to the goods and services of the MERCOSUR States and to the suppliers of the MERCOSUR States offering such goods or services, treatment no less favourable than the treatment accorded to its own goods, services and suppliers;
(b) Each MERCOSUR State, including its procuring entities, shall accord immediately and unconditionally to the goods and services of the EFTA States and to the suppliers of the EFTA State offering such goods or services, treatment no less favourable than the treatment accorded to its own goods, services and suppliers.
2. With respect to any measure regarding covered procurement each State Party, including its procuring entities, shall not:
(a) treat a locally established supplier less favourably than another locally established supplier on the basis of degree of foreign affiliation or ownership; or
(b) discriminate against a locally established supplier on the basis that the goods or services offered by that supplier for a particular procurement are goods or services of another State Party.
3. This Article shall 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; or
(c) other import regulations or formalities and measures affecting trade in services different to the ones which specifically regulate public procurement covered under this Chapter.
Article 11.6. Use of Electronic Means
1. The State Parties shall, to the extent possible, endeavour to use electronic means of communication to permit efficient dissemination of information on government procurement, particularly as regards tender opportunities offered by entities, in accordance with the principles of transparency and non-discrimination.
2. When conducting covered procurement by electronic means, a procuring entity shall:
(a) ensure that the procurement is conducted using information technology systems and software, including those related to authentication and encryption of information, that are generally available and interoperable with other generally available information technology systems and software; and
(b) maintain mechanisms that ensure the integrity of requests for participation and tenders, including establishment of the time of receipt and the prevention of inappropriate access.
Article 11.7. Conduct of Procurement
1. A procuring entity shall conduct covered procurement in a transparent and impartial manner that:
(a) is consistent with this Chapter, using procedures such as open tendering, selective tendering, and limited tendering;
(b) avoids conflicts of interest; and (c) prevents corrupt practices.
2. The State Parties may establish or maintain sanctions against corruptive practices according to their domestic laws and regulations.
Article 11.8. Rules of Origin
For the purposes of covered procurement, no State Party may apply rules of origin to goods imported from another State Party that are different from the rules of origin the State Party applies at the same time in the normal course of trade to imports of the same goods from the same State Party.
Article 11.9. Denial of Benefits
Upon prior notification to a service supplier of another State Party, a State Party may deny the benefits under this Chapter, if such supplier is a juridical person of another State Party not engaged in substantial business operation in the territory of that other State Party.
Article 11.10. Offsets
With regard to covered procurement, a State Party, including its procuring entities, shall not seek, take account of, impose or enforce any offset.
Article 11.11. Information on the Procurement System
1. Each State Party shall promptly publish any measure of general application regarding covered procurement and any modification to this information, in an officially designated electronic or paper medium that is widely disseminated and remains readily accessible to the public.
2. Each State Party shall, upon request, provide another State Party with an explanation relating to such information.
Article 11.12. Notices
1. For each covered procurement, a procuring entity shall publish a notice of intended procurement, except in the circumstances referred to in Article 11.22 (Limited Tendering). The notice shall be published in the electronic or paper medium listed in Appendix 7 to Annex XVIII (Government Procurement). Such medium shall be widely disseminated and the notice shall remain accessible, at least, until expiration of the time period indicated in the notice. The notice shall:
(a) be accessible by electronic means free of charge through a single point of access, for procuring entities covered by Appendix 1 to Annex XVIII (Government Procurement); and
(b) where accessible by electronic means, be provided, to the extent possible, at least through links in a gateway electronic site that is accessible free of charge, for procuring entities covered by Appendix 2 or 3 to Annex XVIII (Government Procurement).
2. The State Parties, including such procuring entities covered by Appendix 2 or 3 to Annex XVIII (Government Procurement), are encouraged to publish their notices by electronic means free of charge through a single point of access.
3. Except as otherwise provided 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, and their cost and terms of payment, 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) for recurring contracts, whenever possible, an estimate of the timing of subsequent notices of intended procurement;
(d) a description of any options;
(e) the time-frame for delivery of goods or services or the duration of the contract;
(f) the procurement procedure that will be used and 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 the 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 an official language of the State Party of the procuring entity;
(j) a list and brief description of any conditions for participation of suppliers, including 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; and
(k) where, pursuant to Article 11.15 (Selective Tendering), 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.
4. Each State Party shall encourage its procuring entities to publish in the appropriate paper or electronic medium listed in Appendix 7 to Annex XVIII (Government Procurement), as early as possible in each fiscal year, a notice regarding their future procurement plans. The notice of planned procurement should include the subject-matter of the procurement and the planned date of the publication of the notice of intended procurement.
5. A procuring entity covered under Appendix 2 or 3 to Annex XVIII (Government Procurement) 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 3 as is available to the entity and a statement that interested suppliers should express their interest in the procurement to the procuring entity.
Article 11.13. Conditions for Participation
1. In establishing the conditions for participation and assessing whether a supplier satisfies such conditions, a State Party, including its procuring entities:
(a) shall limit any conditions for participation in a procurement to those that are essential to ensure that a supplier has the legal and financial capacities and the commercial and technical abilities to undertake the relevant procurement;
(b) 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 State Party of the procuring entity;
(c) shall base its evaluation solely on the conditions that the procuring entity has specified in advance in notices or tender documentation;
(d) 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 State Party or that the supplier has prior work experience in the territory of a given State Party; and
(e) may require relevant prior experience where essential to meet the requirements of the procurement.
2. Where there is supporting evidence, a State 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 in respect of serious crimes or other serious offences;
(e) grave professional misconduct, which renders its integrity questionable if demonstrated by appropriate means by the contracting authority;
(f) failure to pay taxes; or
(g) other sanctions and grounds provided for in a State Party's domestic laws and regulations that disqualify the supplier to contract with entities of the State Parties.
Article 11.14. Registration Systems and Qualification Procedures
1. A State Party, including its procuring entities provided that the State Party provides for it in its domestic laws and regulations, may maintain a supplier registration system under which interested suppliers are required to register and provide certain information.
2. Asupplier registration system or a qualification procedure shall not be adopted or applied with the purpose or the effect of creating unnecessary obstacles to the participation of suppliers of another State Party in a State Party's procurement.
3. State Parties that use registration systems or qualification procedures shall:
(a) ensure that suppliers are treated equally and without discrimination;
(b) ensure that all requirements for inclusion in such registries or for participation in such procedures are publicly available; and
(c) act in a transparent and reasonable manner.
Article 11.15. Selective Tendering
1. Where a procuring entity intends to use selective tendering, the entity shall:
(a) include in the notice of intended procurement at least the information specified in subparagraphs 3 (a), 3 (b), 3 (f), 3 (g), 3 (j), and 3 (k) of Article 11.12 (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 3 (c), 3 (d), 3 (e), 3 (h) and 3 (i) of Article 11.12 (Notices) to the qualified suppliers that it notifies as specified in subparagraph 2 (b) of Appendix 8 to Annex XVIII (Government Procurement).
2. Where a procuring entity intends to use selective tendering, it shall allow all qualified suppliers to participate in a particular procurement, unless the procuring entity states in the notice of intended procurement any limitation on the number of suppliers that will be permitted to tender and the criteria for selecting the limited number of suppliers.
3. Where the tender documentation is not made publicly available from the date of publication of the notice referred to in paragraph 1, 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 2.
Article 11.16. Multi-Use Lists
1. Ifa State Party, in its domestic laws and regulations, provides for the possibility for procuring entities to maintain a multi-use list of suppliers, such laws and regulations shall ensure that a notice inviting interested suppliers to apply for inclusion on the list is:
(a) published annually in the appropriate medium listed in Appendix 7 to Annex XVIII (Government Procurement); and
(b) where published by electronic means, made available continuously in the electronic medium listed in Appendix 7 of Annex XVIII (Government Procurement).
2. Where a multi-use list will be valid for three years or less, a procuring entity may publish the notice 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.
3. The notice referred to in paragraph 1 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 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) to the extent possible, an indication that the list may be used for procurement covered by this Agreement unless that indication is publicly available through information published pursuant to Article 11.11 (Information on the Procurement System).
4. A procuring entity shall allow suppliers to apply at any time for inclusion on a multi-use list and shall include on that list all qualified suppliers within a reasonably short time.
5. 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 relating thereto, within the time period provided for in Appendix 8 to Annex XVIII (Government Procurement), 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 entity has insufficient time to examine the request, unless, in exceptional cases, due to the complexity of the procurement, the entity is not able to complete the examination of the request within the time period allowed for the submission of tenders.
Article 11.17. Information on Procuring Entity Decisions
1. 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.
2. 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 entity shall promptly inform the supplier and, on request of the supplier, promptly provide it with a written explanation of the reasons for its decision.