(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.
Measures Not Specific to Procurement
4, The provisions of paragraphs 1 and 2 shall not apply to customs duties and charges of any kind imposed on, or in connection with, importation, the method of levying such duties and charges, other import regulations or formalities, and measures affecting trade in services other than measures governing covered procurement.
Offsets
5. With regard to covered procurement, a Party, including its procuring entities, shall not seek, take account of, impose, or enforce offsets at any stage of the procurement except as otherwise provided in Annex 9-A.
Rules of Origin
6. For the purposes of covered procurement, each Party shall apply to covered procurements of goods or services, imported from or supplied by the other Party, the rules of origin that it applies in the normal course of trade to those goods or services.
Conduct of Procurement
7. A procuring entity shall conduct covered procurement in a transparent and impartial manner that:
(a) is consistent with this Chapter, using methods such as open tendering, selective tendering and limited tendering;
(b) avoids conflicts of interest; and
(c) prevents corrupt practices.
Article 9.5. INFORMATION ON THE PROCUREMENT SYSTEM
1. Each Party shall promptly publish its procurement laws, regulations, procedures, policy guidelines, judicial decisions and administrative rulings of general application regarding covered procurements, as well as and any changes or additions to this information, in electronic or paper media that are widely disseminated and remain accessible to the public.
2. Each Party shall list in Annex 9-B the electronic or paper media in which the Parties publishes the information described in paragraph 1.
3. Each Party shall promptly reply to any request from the other Party for an explanation of any matter relating to its procurement laws, regulations, procedures, policy guidelines, judicial decisions and administrative rulings of general application.
Article 9.6. PUBLICATION OF NOTICES
Notice of Intended Procurement
1. For each covered procurement, except in the circumstances described in Article 9.11, a procuring entity shall publish a notice inviting interested suppliers to submit tenders or, where appropriate, applications for participation in the procurement. Any such notice shall be published in an electronic or paper medium that is widely disseminated and readily accessible to the public, free of charge, for the entire period established for tendering. Each Party shall ensure for covered procurements that its central government procuring entities, as set out in Section A of Annex 9-A, publish notices of intended procurement in a single point of entry to an electronic publication, that is accessible through the Internet or a comparable network.
2. The Parties shall encourage their procuring entities covered under Section B or C of Annex 9-A, to publish their notices by electronic means free of charge through their respective 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) the time-frame for delivery of goods or services or the duration of the contract;
(d) the procurement method that will be used and whether it will involve negotiation or electronic auction;
(e) where applicable, the address and any final date for the submission of requests for participation in the procurement;
(f) the address and the final date for the submission of tenders;
(g) 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;
(h) where, pursuant to Article 9.8, 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;
(i) the language or languages in which tenders or requests for participation may be submitted, in case they may be submitted in a language other than an official language of the Party of the procuring entity; and
(j) an indication that the procurement is covered by this Chapter.
Notice of Planned Procurement
4, Each Party shall encourage its procuring entities to publish, prior to each fiscal year or as early as possible in each fiscal year, a notice regarding their procurement plans for that fiscal year. The notice should include the subject-matter of the procurement and the planned date of the publication of the notice of the intended procurement.
Article 9.7. CONDITIONS FOR PARTICIPATION
1. A procuring entity shall limit any conditions for participation in a procurement to those that are essential to ensure that a supplier has the legal, commercial, technical, and financial abilities to undertake the relevant procurement.
2. In assessing whether a supplier satisfies the conditions for participation, a procuring entity:
(a) shall evaluate the financial, 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;
(b) shall base its evaluation solely on the conditions that a procuring entity has specified in advance in notices or tender documentation;
(c) shall not impose the condition that, in order for a supplier to participate in a procurement or be awarded a contract, the supplier has previously been awarded one or more contracts by a procuring entity of that Party or that the supplier has prior work experience in the territory of that Party; and
(d) may require prior experience where essential to meet the requirements of the procurement.
3. 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 in respect of serious crimes or other serious offences;
(e) professional misconduct or acts or omissions that adversely reflect on the commercial integrity of the supplier; or
(f) failure to pay taxes.
Article 9.8. REGISTRATION AND QUALIFICATION OF SUPPLIERS
Registration Systems and Qualification Procedures
1. A Party, including its procuring entities, 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 minimize differences in their qualification Pp ig qd procedures; and
(b) where its procuring entities maintain registration systems, the entities make efforts to minimize differences in their registration systems.
3. A Party, including its procuring entities, shall not adopt or apply any registration system or qualification procedure with the purpose or the effect of creating unnecessary obstacles to the participation of suppliers of the other Party in its procurement.
Selective Tendering
4. Where a Party's law allows the use of selective tendering procedures, a procuring entity shall, for each intended procurement:
(a) include in the notice of intended procurement at least the information specified in Article 9.6.3 subparagraphs (a), (b), (d), (e), (g), (h), (i) and (j) 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 Article 9.6.3 subparagraphs (c), and (f) regarding the qualified suppliers that it notifies as specified in Articles 9.9.3(b).
5. A procuring entity 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.
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 establish a multi-use list, provided that the entity annually publishes or otherwise makes available continuously in electronic form a notice inviting interested suppliers to apply for inclusion on the list. The notice shall include:
(a) a description of the goods and 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 a supplierâs satisfaction of 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) an indication that the list may be used for procurement covered by this Chapter.
8. A procuring entity shall allow suppliers to apply for inclusion on a multi-use list and shall include on the list all qualified suppliers within a reasonably short time.
9. Notwithstanding paragraph 7, where a multi-use list will be 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.
Article 9.9. TIME LIMITS
1. A procuring entity shall, consistent with its own reasonable needs, provide sufficient time for suppliers 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) whether tenders can be received by electronic means.
Such time-periods, including any extension of the time-periods, shall be the same for all interested or participating suppliers.
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 15 days from the date of publication of the notice of intended procurement. Where a state of urgency duly substantiated by the procuring entity 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 and 5, 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 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 set out in paragraph 3 to not less than 10 days where:
(a) the procuring entity has published a notice in an electronic medium listed in Annex 9-B, containing the information specified in Article 9.6.3 at least 40 days and not more than 12 months in advance;
(b) in the case of the second or subsequent publication of notices for procurement of a recurring nature; or
(c) a state of urgency duly substantiated by the procuring entity renders such time- period impracticable.
5. A procuring entity may reduce the time-period for tendering set out in paragraph 3 by five days for each one of the following circumstances:
(a) the notice of intended procurement is published by electronic means;
(b) all the tender documentation is made available by electronic means from the date of the publication of the notice of intended procurement; and
(c) the tenders can be received by electronic means by the procuring entity.
6. The use of paragraph 5, in conjunction with paragraph 4, shall in no case result in the reduction of the time-period for tendering set out in paragraph 3 to less than 10 days from the date on which the notice of intended procurement is published.
7. Notwithstanding any other time-period in this Article, where a procuring entity purchases commercial goods or services, it may reduce the time-period for tendering set out in paragraph 3 to not less than 13 days, provided that it publishes by electronic means, at the same time, both the notice of intended procurement and the tender documentation. Where the entity also accepts tenders for commercial goods and services by electronic means, it may reduce the time-period set out in paragraph 3 to not less than 10 days.
8. Where a procuring entity in Sections B or C of Annex 9-A 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 9.10. INFORMATION ON INTENDED PROCUREMENTS
Tender Documentation
1. A procuring entity shall promptly make available to any supplier interested in participating in a procurement tender documentation that includes all information necessary to permit suppliers to prepare and submit responsive tenders.
2. Unless already provided 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 any financial guarantees, information, and documents that suppliers are required to submit;
(c) all evaluation criteria to be considered 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;
(ff) where there will be a public opening of tenders, the date, time, and place for the opening of tenders, where appropriate, the persons authorized 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, e.g., paper or electronic means; and
(h) any dates for the delivery of goods or the supply of services.
3. 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.
4. If, in tendering procedures, an entity allows tenders to be submitted in several languages, one of those languages shall be English.
Technical Specifications 5. 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 unnecessary obstacles to international trade between the Parties.
6. In prescribing the technical specifications for the goods or services being procured, a procuring entity shall, where appropriate:
(a) specify 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; otherwise, on national technical regulations, recognized national standards or building codes.
7. Where design or descriptive characteristics are used in the technical specifications, a procuring entity shall indicate, where appropriate, that it will consider tenders of equivalent goods or services that demonstrably fulfill the requirements of the procurement by including words such as "or equivalent" in the tender documentation.
8. 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 entity includes words such as âor equivalent" in the tender documentation.
9. 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.
10. For greater certainty, a procuring entity may, in accordance with this Article, prepare, adopt or apply technical specifications to promote the conservation of natural resources or protect the environment.
Modifications
11. Where, prior to the award of a contract, a procuring entity modifies the criteria or technical 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 the suppliers that are participating at the time the information is modified, if the identities of such suppliers are known, and, in all other cases, in the same manner that the original information was made available; and
(b) in adequate time to allow such suppliers to modify and re-submit amended tenders, as appropriate.
Article 9.11. NEGOTIATION
1. A Party may provide for its procuring entities to conduct negotiations:
(a) where the entity has indicated its intent to conduct negotiations in the notice of intended procurement as set forth in Articles 9.6.1 through 9.6.3; 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.
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) where negotiations are concluded, provide a common deadline for the remaining participating suppliers to submit any new or revised tenders.
Article 9.12. LIMITED TENDERING
1. Provided that it does not use this provision for the purposes 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, 9.7, 9.8, 9.9, Articles 9.10.1 through 9.10.4, 9.10.11, and Articles 9.11, 9.13, 9.14, only under any of the following circumstances:
(a) provided that the requirements of the tender documentation are not substantially modified, where:
(i) no tenders were submitted or no suppliers requested participation;
(ii) no tenders that conform to the essential requirements of the tender documentation were submitted;
(iii) no suppliers satisfied the conditions for participation; or
(iv) the tenders submitted have been collusive.
(b) 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:
(i) the requirement is for a work of art;
(ii) the protection of patents, copyrights or other exclusive rights; or
(iii) due to 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, where:
(i) a change of supplier for such additional goods or services 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
(ii) such separation would cause significant inconvenience or substantial duplication of costs for the procuring entity;
(d) 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 open tendering or selective tendering;
(e) for goods purchased on a commodity market;
(f) 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;
(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;
(h) where a contract is awarded to a winner of a design contest provided that:
(i) the contest has been organized 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) the participants are judged by an independent jury with a view to a design contract being awarded to a winner; and
(j) where additional construction services, which were not included in the initial contract but which were within the objectives of the original tender documentation have, through unforeseen circumstances, become necessary to complete the construction services described therein. In such cases, the total value of contracts awarded for additional construction services may not exceed 50 percent of the amount of the initial contract.
2. For each contract awarded under paragraph 1, a procuring entity shall prepare a written report that includes:
(a) the name of the procuring entity;