(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 supplierâs 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
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has prior work experience in the territory of a given State Party; and
(ec) 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;
® failure to pay taxes; or
(g) other sanctions and grounds provided for in a State Partyâs 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 Partyâs 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.
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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 (), 3 (g), 3 Gj), 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) â 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
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(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 entityâs decision with respect to the request or application.
2. Where a procuring entity rejects a supplierâs 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
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the supplier and, on request of the supplier, promptly provide it with a written explanation of the reasons for its decision.
Article 11.18. Tender Documentation
1. A procuring entity shall make available to suppliers tender documentation that includes all information necessary to permit suppliers to prepare and submit responsive tenders. Unless already provided for in the notice of intended procurement, such documentation shall include a complete description of:
(a) 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 and any requirements to be fulfilled, including any technical specifications, conformity assessment 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 the entity will apply 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 other requirements related to the submission of information by electronic means;
(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 on which the auction will be conducted;
@ where there will be a public opening of tenders, the date, time and place for the opening and, where appropriate, the persons authorised to be present;
(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, in the tender documentation, any delivery date for the goods or services being procured, a procuring entity shall take into account 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, among others, price and other cost factors, quality, technical merit, environmental characteristics and terms of delivery.
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4, Where contracting entities do not offer free direct access to the entire tender documents and any supporting documents by electronic means, entities shall make promptly available the tender documentation at the request of any interested supplier of the State Parties. The procuring entities shall also promptly make available any relevant information requested by any interested or participating supplier, provided that such information does not give that supplier an advantage over other suppliers, and that the request was presented within the corresponding time limits.
5. Procuring entities may require bidders to provide guarantees for maintaining the offer, and the successful bidder to provide a guarantee for the execution of the contract.
Article 11.19. Technical Specifications
1. A procuring entity shall not prepare, adopt or apply any technical specification nor prescribe any conformity assessment procedure with the purpose or the effect of limiting competition, creating unnecessary obstacles to trade between the State Parties or discriminating between suppliers.
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 such exist or 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 should indicate, where appropriate, that it will consider tenders of equivalent goods or services that demonstrably fulfil the requirements of the procurement by including words such as âor equivalentâ in the tender documentation.
4. A procuring entity shall not prescribe any technical specifications that require or refer to a particular trademark or trade name, patent, copyright, design or 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 entity includes words such as âor equivalentâ 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 State 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.
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Article 11.20. Modifications of the Tender Documentation and Technical Specifications
1. Where, prior to the opening of tenders, a procuring entity modifies the criteria or requirements set out in a notice 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 known, and in all other cases, in the same manner as the original information was made available; and
(6) â_ in adequate time to allow such suppliers to modify and re-submit amended tenders, as appropriate.
2, A procuring entity may modify the criteria or requirements set out in a notice or tender documentation between the opening of tenders and the award of a contract, provided that such modification is in accordance with the State Partyâs domestic laws and regulations. In this case, a procuring entity shall not make substantial modifications to the criteria or requirements set out in the notice or tender documentation, and shall transmit in writing all such modifications in the same manner prescribed by paragraph 1.
Article 11.21. Time Periods
1. A procuring entity shall, consistent with its own reasonable needs, provide suppliers sufficient time to prepare and submit requests for participation and responsive tenders, taking into account such factors as the nature and complexity of the procurement, the extent of subcontracting anticipated, the time for transmitting tenders from foreign as well as domestic points, where electronic means are not used.
2. Each State Party shall apply time-periods in accordance with Appendix 8 to Annex XVIII (Government Procurement). Such time periods, including any extension, shall be the same for all interested or participating suppliers.
Article 11.22. Limited Tendering
1. Provided that it does not use this provision for the purpose of avoiding competition among suppliers or in a manner that discriminates against suppliers of another State Party or protects domestic suppliers, a procuring entity of a State Party may use limited tendering, and, in accordance with the domestic laws and regulations of that State Party, may choose not to apply Articles 11.12 (Notices), 11.13 (Conditions for Participation), 11.14 (Registration Systems and Qualification Procedures), 11.15 (Selective Tendering), 11.16 (Multi-Use Lists), 11.17 (information on Procuring Entity Decisions), 11.18 (Tender Documentation), 11.21 (Time Periods), 11.23 (Electronic Auctions), 11.24
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(Negotiations), 11.25 (Treatment of Tenders) and 11.26 (Awarding of Contracts) only under the following circumstances:
@
6)
©)
@)
©) ®
provided that the requirements of the tender documentation are not substantially modified, where:
@) no tenders were submitted, or no supplier requested participation;
Gi) no tenders that conform to the essential requirements of the tender documentation were submitted;
Gii) no suppliers satisfied the conditions for participation; or (iv) _ the tenders submitted have been collusive;
where 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:
@) âthe requirement is for a work of art; Gi) the protection of patents, copyrights or other exclusive rights; or Gii) due to an absence of competition for technical reasons;
for additional deliveries by the original supplier of goods and services that were not included in the initial procurement, where a change of supplier for such additional goods and services:
a 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; and
Gi) would cause significant inconvenience or substantial duplication of costs to the procuring entity;
insofar as is strictly necessary where, for reasons of extreme urgency brought about by events unforeseeable by the procuring entity, the goods or services could not be obtained in time using an open or selective tendering procedure;
for goods purchased on a commodity market;
where 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 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. When such contracts have been completed subsequent procurements of the developed goods or services shall be subject to this Chapter.
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(g)
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
(h) where a contract is awarded to a winner of a design contest provided that: a 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 (ii) âthe participants are judged by an independent jury with a view to a design contract being awarded to a winner. 2. A procuring entity shall prepare a report in writing, or maintain records, on each
contract awarded according to paragraph 1. The report or the records 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 11.23. Electronic Auctions
Where a procuring entity intends to conduct a covered procurement using an electronic auction, the entity shall provide each participant, before commencing the electronic auction, with:
(a) the automatic evaluation method, including the mathematical formula, 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;
(b) the results of any initial evaluation of the elements of its tender where the contract is to be awarded on the basis of the most advantageous tender; and
(c) any other relevant information relating to the conduct of the auction.
Article 11.24. Negotiations 1. Ifa State Party Provides for Its Procuring Entities to Conduct Procurement Through Negotiations, Procuring Entities May Do so In the Following Cases:
(a) where the entity has indicated such intent in the notice of intended procurement pursuant to Article 11.12 (Notices); or
(b) where 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.
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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) â where negotiations are concluded, provide a common deadline for the remaining participating suppliers to submit any new or revised tenders.
Article 11.25. 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, A procuring entity of a State Party, in accordance with the domestic laws and regulations of that State Party, shall not penalise any supplier whose tender is received after the time specified for receiving tenders if the delay is due solely to mishandling on the part of the procuring entity.
3. Where a procuring entity provides suppliers with an opportunity to correct errors between the opening of tenders and the awarding of the contract, the entity shall provide all participating suppliers with the same opportunity, provided that the correction of the etror does not substantially alter the submitted tender, nor affect the principles of transparency and fair competition between suppliers.
Article 11.26. Awarding of Contracts
1. To be considered for 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 from a supplier that satisfies the conditions for participation.
2. Unless a procuring entity determines that it is not in the public interest to award a contract, the entity shall award the contract to the supplier that it 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.
3. 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.
4, A procuring entity shall not use option clauses, cancel a procurement or modify awarded contracts in a manner that circumvents the obligations under this Chapter.
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5. The State Parties may provide that if, for reasons imputable to the supplier to which the contract has been awarded, the contract is not concluded within a reasonable time, or the supplier does not fulfil the required guarantee for the execution of the contract or does not comply with the contract terms, the contract may be awarded to the next tenderer and so forth.
Article 11.27. Transparency of Procurement Information
1. A procuring entity shall promptly inform participating suppliers of its contract award decisions and, upon request, shall do so in writing.
2. Subject to Article 11.28 (Disclosure of Information), a procuring entity shall, upon request, provide an unsuccessful supplier with an explanation of the reasons why the entity did not select its tender and the relative advantages of the successful supplierâs tender.
3. After the award of a contract covered by this Chapter, a procuring entity shall, as soon as possible, according to the time limits established in each State Partyâs domestic laws and regulations, and no later than 72 days from the award of the contract, publish in a paper or electronic medium listed in Appendix 7 of Annex XVIII (Government Procurement), a notice that includes at least the following information about the contract:
(a) _adescription of the goods or services procured; (b) the name and address of the procuring entity; (c) the name and, if applicable, the 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
® the type of procurement procedure used, and in cases where limited tendering was used pursuant to Article 11.22 (Limited Tendering), a description of the circumstances justifying the use of limited tendering.
4. Where the entity publishes the notice referred to in paragraph 3 only in an electronic medium, the information shall remain readily accessible for a reasonable period of time.
5. Each procuring entity shall, for a period of at least three years from the date it awards a contract, maintain the documentation and reports or records of tendering procedures and contract awards relating to covered procurement, including the reports or records provided for in Article 11.22 (Limited Tendering) and data that demonstrates how covered procurement by electronic means has been conducted.
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Article 11.28. Disclosure of Information
1. Upon request of another State Party, a State Party shall promptly provide any information necessary to determine whether a procurement was conducted fairly, impartially and in accordance with this Chapter, including information on the characteristics and relative advantages of the successful tender.
2. In cases where the release of such information would prejudice competition in future tenders, the State Party that receives the information shall not disclose it to any supplier, except after consulting with, and obtaining the agreement of, the State Party that provided the information.
3. Notwithstanding any other provision of this Chapter, a State Party, including its procuring entities, shall not provide information to a supplier that might prejudice fair competition between suppliers.
4. Nothing in this Chapter shall be construed to require a State Party, including its procuring entities, authorities and review bodies, to disclose confidential information where disclosure:
(a) â_ would impede law enforcement; (b) = might prejudice fair competition between suppliers;