The North-Atlantic Free Trade Agreement and the Trans-Pacific Partnership: Side-by-Side Comparison NAFTA Chapter 10: Government Procurement
Chapter Ten: Government Procurement Chapter Fifteen: Government Procurement Section A: Scope and Coverage and National Treatment Article 1001: Scope and Coverage Article 15.2: Scope Application of Chapter 1. This Chapter applies to measures adopted or maintained by a Party relating to procurement: (a) by a federal government entity set out in Annex 1001.1a-1, a government enterprise set out in Annex 1001.1a-2, or a state or provincial government entity set out in Annex 1001.1a-3 in accordance with Article 1024; (b) of goods in accordance with Annex 1001.1b-1, services in accordance with Annex 1001.1b-2, or construction services in accordance with Annex 1001.1b-3; and (c) where the value of the contract to be awarded is estimated to be equal to or greater than a threshold, calculated and adjusted according to the U.S. inflation rate as set out in Annex 1001.1c, of (i) for federal government entities, US$50,000 for contracts for goods, services or any combination thereof, and US$6.5 million for contracts for construction services, (ii) for government enterprises, US$250,000 for contracts for goods, services or any combination thereof, and US$8.0 million for contracts for construction services, and (iii) for state and provincial government entities, the applicable threshold, as set out in Annex 1001.1a-3 in accordance with Article 1024. 1. This Chapter applies to any measure regarding covered procurement. 2. For the purposes of this Chapter, covered procurement means government procurement: (d) by a procuring entity; and (a) of a good, service or any combination thereof as specified in each Party s Schedule to Annex 15-A; (b) by any contractual means, including: purchase; rental or lease, with or without an option to buy; build-operate-transfer contracts and public works concessions contracts; 2. Paragraph 1 is subject to: (a) the transitional provisions set out in Annex 1001.2a; (b) the General Notes set out in Annex 1001.2b; and (c) Annex 1001.2c, for the Parties specified therein. 3. Subject to paragraph 4, where a contract to be awarded by an entity is not covered by this Chapter, this Chapter shall not be construed to cover any good or service component of that contract. 4. No Party may prepare, design or otherwise structure any procurement contract in order to avoid the obligations of this Chapter. 5. Procurement includes procurement by such methods as purchase, lease or rental, with or without an option to buy. Procurement does not include: (a) non-contractual agreements or any form of government assistance, including cooperative agreements, grants, loans, equity infusions, guarantees, fiscal incentives, and government provision of goods and services to persons or state, provincial and regional governments; and (c) for which the value, as estimated in accordance with paragraphs 8 and 9, equals or exceeds the relevant threshold specified in a Party s Schedule to Annex 15-A, at the time of publication of a notice of intended procurement; (e) that is not otherwise excluded from coverage under this Agreement. Activities Not Covered 3. Unless otherwise provided in a Party s Schedule to Annex 15-A, this Chapter does not apply to: (a) the 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 Party, including its procuring entities, provides, including cooperative agreements, grants, loans, equity infusions, guarantees, subsidies, fiscal incentives and sponsorship arrangements; Prepared by the Law Offices of Stewart and Stewart Page 1 of 87
(b) the acquisition of fiscal agency or depository services, liquidation (c) the procurement or acquisition of: fiscal agency or depository and management services for regulated financial institutions and services; liquidation and management services for regulated sale and distribution services for government debt. financial institutions; or services related to the sale, redemption and distribution of public debt, including loans and government bonds, notes and other securities; (d) public employment contracts; (e) procurement: (i) conducted for the specific purpose of providing international assistance, including development aid; (ii) funded by an international organisation or foreign or international grants, loans or other assistance to which procurement procedures or conditions of the international organisation or donor apply. If the procedures or conditions of the international organisation or donor do not restrict the participation of suppliers then the procurement shall be subject to Article 15.4.1 (General Principles); or (iii) conducted under the 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; and (f) procurement of a good or service outside the territory of the Party of the procuring entity, for consumption outside the territory of that Party. Schedules 4. Each Party shall specify the following information in its Schedule to Annex 15-A: (a) in Section A, the central government entities whose procurement is covered by this Chapter; (b) in Section B, the sub-central government entities whose procurement is covered by this Chapter; (c) in Section C, other entities whose procurement is covered by this Chapter; (d) in Section D, the goods covered by this Chapter; (e) in Section E, the services, other than construction services, covered by this Chapter; (f) in Section F, the construction services covered by this Chapter; (g) in Section G, any General Notes; (h) in Section H, the applicable Threshold Adjustment Formula; Article 1002: Valuation of Contracts (i) in Section I, the publication information required under Article 15.6.2 (Publication of Procurement Information); and (j) in Section J, any transitional measures in accordance with Article 15.5 (Transitional Measures). Compliance 5. Each Party shall ensure that its procuring entities comply with this Chapter in conducting covered procurements. 6. No procuring entity shall prepare or design a procurement, or otherwise structure or divide a procurement into separate procurements in any stage of the procurement, or use a particular method to estimate the value of a procurement, in order to avoid the obligations of this Chapter. 7. Nothing in this Chapter shall be construed to prevent a Party, including its procuring entities, from developing new procurement policies, procedures or contractual means, provided that they are not inconsistent with this Chapter. Valuation Prepared by the Law Offices of Stewart and Stewart Page 2 of 87
1. Each Party shall ensure that its entities, in determining whether a contract is covered by this Chapter, apply paragraphs 2 through 7 in 8. In estimating the value of a procurement for the purposes of ascertaining whether it is a covered procurement, a procuring entity calculating the value of that contract. shall include the estimated maximum total value of the procurement over its entire duration, taking into account: 2. The value of a contract shall be estimated as at the time of publication of a notice in accordance with Article 1010. 3. In calculating the value of a contract, an entity shall take into account all forms of remuneration, including premiums, fees, commissions and interest. 4. Further to Article 1001(4), an entity may not select a valuation method, or divide procurement requirements into separate contracts, to avoid the obligations of this Chapter. 5. Where an individual requirement for a procurement results in the award of more than one contract, or in contracts being awarded in separate parts, the basis for valuation shall be either: (a) the actual value of similar recurring contracts concluded over the prior fiscal year or 12 months adjusted, where possible, for anticipated changes in quantity and value over the subsequent 12 months; or (b) the estimated value of recurring contracts in the fiscal year or 12 months subsequent to the initial contract. (a) all forms of remuneration, including any premium, fee, commission, interest or other revenue stream that may be provided for under the contract; 6. In the case of a contract for lease or rental, with or without an option to buy, or in the case of a contract that does not specify a total price, the basis for valuation shall be: (a) in the case of a fixedterm contract, where the term is 12 months or less, the total contract value, for its duration or, where the term exceeds 12 months, the total contract value, including the estimated residual value; or (b) in the case of a contract for an indefinite period, the estimated monthly installment multiplied by 48. If the entity is uncertain as to whether a contract is for a fixed or an indefinite term, the entity shall calculate the value of the contract using the method set out in subparagraph (b). 7. Where tender documentation requires option clauses, the basis for valuation shall be the total value of the maximum permissible procurement, including all possible optional purchases. (b) the value of any option clause; and Article 1003: National Treatment and Non-Discrimination 1. With respect to measures covered by this Chapter, each Party shall accord to goods of another Party, to the suppliers of such goods and to service suppliers of another Party, treatment no less favorable than the most favorable treatment that the Party accords to: (a) its own goods and suppliers; and (b) goods and suppliers of another Party. (c) any contract awarded at the same time or over a given period to one or more suppliers under the same procurement. 9. If the total estimated maximum value of a procurement over its entire duration is not known, the procurement shall be deemed a covered procurement, unless otherwise excluded under this Agreement. Article 15.4: General Principles National Treatment and Non-Discrimination 1. With respect to any measure regarding covered procurement, each Party, including its procuring entities, shall accord immediately and unconditionally to the goods and services of any other Party and to the suppliers of any other Party, treatment no less favourable than the treatment that the Party, including its procuring entities, accords to: (a) domestic goods, services and suppliers; and (b) goods, services and suppliers of any other Party. For greater certainty, this obligation refers only to the treatment accorded by a Party to any good, service or supplier of any other Party under this Agreement. Prepared by the Law Offices of Stewart and Stewart Page 3 of 87
2. With respect to measures covered by this Chapter, no Party may: 2. With respect to any measure regarding covered procurement, no Party, including its procuring entities, shall: (a) treat a locally established supplier less favorably 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 the particular procurement are goods or services of another Party. (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 good or service offered by that supplier for a particular procurement is a good or service of any other Party. 3. Paragraph 1 does not apply to measures respecting customs duties or other charges of any kind imposed on or in connection with importation, the method of levying such duties or charges or other import regulations, including restrictions and formalities. Article 1004: Rules of Origin No Party may apply rules of origin to goods imported from another Party for purposes of government procurement covered by this Chapter that are different from or inconsistent with the rules of origin the Party applies in the normal course of trade, which may be the Marking Rules established under Annex 311 if they become the rules of origin applied by that Party in the normal course of its trade. 3. All orders under contracts awarded for covered procurement shall be subject to paragraphs 1 and 2 of this Article. Procurement Methods 4. A procuring entity shall use an open tendering procedure for covered procurement unless Article 15.9 (Qualification of Suppliers) or Article 15.10 (Limited Tendering) applies. Rules of Origin 5. Each Party shall apply to covered procurement of a good the rules of origin that it applies in the normal course of trade to that good. Article 1005: Denial of Benefits 1. Subject to prior notification and consultation in accordance with Articles 1803 (Notification and Provision of Information) and 2006 (Consultations), a Party may deny the benefits of this Chapter to a service supplier of another Party where the Party establishes that the service is being provided by an enterprise that is owned or controlled by persons of a non-party and that has no substantial business activities in the territory of any Party. 2. A Party may deny to an enterprise of another Party the benefits of this Chapter if nationals of a non-party own or control the enterprise and: (a) the circumstance set out in Article 1113(1)(a) (Denial of Benefits) is met; or (b) the denying Party adopts or maintains measures with respect to the non-party that prohibit transactions with the enterprise or that would be violated or circumvented if the benefits of this Chapter were accorded to the enterprise. Article 1006: Prohibition of Offsets Offsets Each Party shall ensure that its entities do not, in the qualification 6. With regard to covered procurement, no Party, including its and selection of suppliers, goods or services, in the evaluation of procuring entities, shall seek, take account of, impose or enforce bids or the award of contracts, consider, seek or impose offsets. For any offset, at any stage of a procurement. purposes of this Article, offsets means conditions imposed or considered by an entity prior to or in the course of its procurement process that encourage local development or improve its Party's balance of payments accounts, by means of requirements of local content, licensing of technology, investment, counter-trade or similar requirements. Measures Not Specific to Procurement Prepared by the Law Offices of Stewart and Stewart Page 4 of 87
7. 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. Article 1007: Technical Specifications 1. Each Party shall ensure that its entities do not prepare, adopt or apply any technical specification with the purpose or the effect of creating unnecessary obstacles to trade. 2. Each Party shall ensure that any technical specification prescribed by its entities is, where appropriate: Use of Electronic Means 8. The Parties shall seek to provide opportunities for covered procurement to be undertaken through electronic means, including for the publication of procurement information, notices and tender documentation, and for the receipt of tenders. 9. 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) establish and maintain mechanisms that ensure the integrity of information provided by suppliers, including requests for participation and tenders. Article 15.12: 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 effect of creating an unnecessary obstacle to trade between the Parties. 2. In prescribing the technical specifications for the good or service being procured, a procuring entity shall, if appropriate: (a) specified in terms of performance criteria rather than design or descriptive characteristics; and (b) based on international standards, national technical regulations, recognized national standards, or building codes. 3. Each Party shall ensure that the technical specifications prescribed by its entities do not require or refer to a particular trademark or name, patent, design or type, specific origin or producer or supplier unless there is no sufficiently precise or intelligible way of otherwise describing the procurement requirements and provided that, in such cases, words such as "or equivalent" are included in the tender documentation. (a) set out the technical specifications in terms of performance and functional requirements, rather than design or descriptive characteristics; and (b) base the technical specifications on international standards, if these exist; otherwise, on national technical regulations, recognised national standards or building codes. 3. 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 these cases, the procuring entity includes words such as or equivalent in the tender documentation. 4. Each Party shall ensure that its entities do not seek or accept, in a 4. A procuring entity shall not seek or accept, in a manner that manner that would have the effect of precluding competition, would have the effect of precluding competition, advice that may be advice that may be used in the preparation or adoption of any used in the preparation or adoption of any technical specification technical specification for a specific procurement from a person that for a specific procurement from a person that may have a may have a commercial interest in that procurement. commercial interest in the procurement. 5. For greater certainty, a procuring entity may conduct market research in developing specifications for a particular procurement. 6. For greater certainty, this Article is not intended to preclude a procuring entity from preparing, adopting or applying technical specifications to promote the conservation of natural resources or the protection of the environment. Prepared by the Law Offices of Stewart and Stewart Page 5 of 87
7. For greater certainty, this Chapter is not intended to preclude a Party, or its procuring entities, from preparing, adopting or applying technical specifications required to protect sensitive government information, including specifications that may affect or limit the storage, hosting or processing of such information outside the territory of the Party. Section B - Tendering Procedures Article 1008: Tendering Procedures 1. Each Party shall ensure that the tendering procedures of its entities are: (a) applied in a non-discriminatory manner; and (b) consistent with this Article and Articles 1009 through 1016. 2. In this regard, each Party shall ensure that its entities: (a) do not provide to any supplier information with regard to a specific procurement in a manner that would have the effect of precluding competition; and (b) provide all suppliers equal access to information with respect to a procurement during the period prior to the issuance of any notice or tender documentation. Article 1009: Qualification of Suppliers 1. Further to Article 1003, no entity of a Party may, in the process of qualifying suppliers in a tendering procedure, discriminate between suppliers of the other Parties or between domestic suppliers and suppliers of the other Parties. Article 15.8: Conditions for Participation 2. The qualification procedures followed by an entity shall be consistent with the following: (a) conditions for participation by suppliers in tendering procedures shall be published sufficiently in advance so as to provide the suppliers adequate time to initiate and, to the extent that it is compatible with efficient operation of the procurement process, to complete the qualification procedures; (b) conditions for participation by suppliers in tendering procedures, including financial guarantees, technical qualifications and information necessary for establishing the financial, commercial and technical capacity of suppliers, as well as the verification of whether a supplier meets those conditions, shall be limited to those that are essential to ensure the fulfillment of the contract in question; 1. A procuring entity shall limit any conditions for participation in a covered procurement to those conditions that ensure that a supplier has the legal and financial capacities and the commercial and technical abilities to fulfil the requirements of that procurement. (c) the financial, commercial and technical capacity of a supplier shall be judged both on the basis of that supplier's global business activity, including its activity in the territory of the Party of the supplier, and its activity, if any, in the territory of the Party of the procuring entity; 3. In assessing whether a supplier satisfies the conditions for participation, a procuring entity shall: (a) 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) base its evaluation solely on the conditions that the procuring entity has specified in advance in notices or tender documentation. (d) an entity shall not misuse the process of, including the time required for, qualification in order to exclude suppliers of another Party from a suppliers' list or from being considered for a particular procurement; Prepared by the Law Offices of Stewart and Stewart Page 6 of 87
(e) an entity shall recognize as qualified suppliers those suppliers of another Party that meet the conditions for participation in a particular procurement; (f) an entity shall consider for a particular procurement those suppliers of another Party that request to participate in the procurement and that are not yet qualified, provided there is sufficient time to complete the qualification procedure; (g) an entity that maintains a permanent list of qualified suppliers shall ensure that suppliers may apply for qualification at any time, that all qualified suppliers so requesting are included in the list within a reasonably short period of time and that all qualified suppliers included in the list are notified of the termination of the list or of their removal from it; (h) where, after publication of a notice in accordance with Article 1010, a supplier that is not yet qualified requests to participate in a particular procurement, the entity shall promptly start the qualification procedure; (i) an entity shall advise any supplier that requests to become a qualified supplier of its decision as to whether that supplier has become qualified; and (j) where an entity rejects a supplier's application to qualify or ceases to recognize a supplier as qualified, the entity shall, on request of the supplier, promptly provide pertinent information concerning the entity's reasons for doing so. 3. Each Party shall: (a) ensure that each of its entities uses a single qualification procedure, except that an entity may use additional qualification procedures where the entity determines the need for a different procedure and is prepared, on request of another Party, to demonstrate that need; and (b) endeavor to minimize differences in the qualification procedures of its entities. 4. Nothing in paragraphs 2 and 3 shall prevent an entity from excluding a supplier on grounds such as bankruptcy or false declarations. 4. If there is supporting material, a Party, including its procuring entities, may exclude a supplier on grounds such as: (a) bankruptcy or insolvency; (b) false declarations; (c) significant or persistent deficiencies in the performance of any substantive requirement or obligation under a prior contract or (d) failure to pay taxes. 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; and (b) may require relevant prior experience if essential to meet the requirements of the procurement. Prepared by the Law Offices of Stewart and Stewart Page 7 of 87
5. For greater certainty, this Article is not intended to preclude a procuring entity from promoting compliance with laws in the territory in which the good is produced or the service is performed relating to labour rights as recognised by the Parties and set forth in Article 19.3 (Labour Rights), provided that such measures are applied in a manner consistent with Chapter 26 (Transparency and Anti-Corruption), and are not applied in a manner that constitutes a means of arbitrary or unjustifiable discrimination between the Parties or a disguised restriction on trade between the Parties. 1 Footnote 1 The adoption and maintenance of these measures by a Party should not be construed as evidence that another Party has breached the obligations under Chapter 19 (Labour) with respect to labour. Article 15.9: 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. No Party, including its procuring entities, shall: (a) 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 another Party in its procurement; or (b) use such registration system or qualification procedure to prevent or delay the inclusion of suppliers of other Parties on a list of suppliers or prevent those suppliers from being considered for a particular procurement. Selective Tendering 3. If a Party s measures authorise the use of selective tendering, and if a procuring entity intends to use selective tendering, the procuring entity shall: (a) publish a notice of intended procurement that invites suppliers to submit a request for participation in a covered procurement; and (b) include in the notice of intended procurement the information specified in Article 15.7.3(a), (b), (d), (g), (h) and (i) (Notices of Intended Procurement). 4. The procuring entity shall: (a) publish the notice sufficiently in advance of the procurement to allow interested suppliers to request participation in the procurement; (b) provide, by the commencement of the time period for tendering, at least the information in Article 15.7.3 (c), (e) and (f) (Notices of Intended Procurement) to the qualified suppliers that it notifies as specified in Article 15.14.3(b) (Time Periods); and (c) allow all qualified suppliers to submit a tender, unless the procuring entity stated in the notice of intended procurement a limitation on the number of suppliers that will be permitted to tender and the criteria or justification for selecting the limited number of suppliers. 5. If the tender documentation is not made publicly available from the date of publication of the notice referred to in paragraph 3, the procuring entity shall ensure that the tender documentation is made available at the same time to all the qualified suppliers selected in accordance with paragraph 4(c). Multi-Use Lists Prepared by the Law Offices of Stewart and Stewart Page 8 of 87
6. A Party, including its procuring entities, may establish or maintain a multi-use list provided that it publishes annually, or otherwise makes continuously available by electronic means, 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 or other government agency will use to verify a supplier s satisfaction of those conditions; (c) the name and address of the procuring entity or other (d) the period of validity of the list and the means for its renewal or termination or, if the period of validity is not provided, an indication (e) the deadline for submission of applications for inclusion on the list, if applicable; and (f) an indication that the list may be used for procurement covered by this Chapter, unless that indication is publicly available through 7. A Party, including its procuring entities, that establishes or maintains a multi-use list, shall include on the list, within a 8. If a supplier that is not included on a multi-use list submits a request for participation in a procurement based on the multi-use Information on Procuring Entity Decisions 9. A procuring entity or other entity of a Party 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 decision with respect to the request or application. 10. If a procuring entity or other entity of a Party rejects a supplier s request for participation 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 the supplier with a written explanation of the reason for its decision. Article 1010: Invitation to Participate 1. Except as otherwise provided in Article 1016, an entity shall publish an invitation to participate for all procurements in accordance with paragraphs 2, 3 and 5, in the appropriate publication referred to in Annex 1010.1. Article 15.7: Notices of Intended Procurement 1. For each covered procurement, except in the circumstances described in Article 15.10 (Limited Tendering), a procuring entity shall publish a notice of intended procurement through the appropriate paper or electronic means listed in Annex 15-A. The notices shall remain readily accessible to the public until at least the expiration of the time period for responding to the notice or the deadline for submission of the tender. 2. The invitation to participate shall take the form of a notice of proposed procurement that shall contain the following information: 2. The notices shall, if accessible by electronic means, be provided free of charge: (a) for central government entities that are covered under Annex 15- A, through a single point of access; and (b) for sub-central government entities and other entities covered under Annex 15-A, through links in a single electronic portal. 3. Unless otherwise provided in this Chapter, each notice of intended procurement shall include the following information, unless that information is provided in the tender documentation that is made available free of charge to all interested suppliers at the same time as the notice of intended procurement: Prepared by the Law Offices of Stewart and Stewart Page 9 of 87
(a) a description of the nature and quantity of the goods or services (b) a description of the procurement, including, if appropriate, the to be procured, including any options for further procurement and, nature and quantity of the goods or services to be procured and a if possible, (i) an estimate of when such options may be exercised, description of any options, or the estimated quantity if the quantity and (ii) in the case of recurring contracts, an estimate of when the is not known; subsequent notices will be issued; (b) a statement as to whether the procedure is open or selective and whether it will involve negotiation; (c) any date for starting or completion of delivery of the goods or services to be procured; (d) the address to which an application to be invited to tender or to qualify for the suppliers' lists must be submitted, the final date for receiving the application and the language or languages in which it may be submitted; (e) the address to which tenders must be submitted, the final date for receiving tenders and the language or languages in which tenders may be submitted; (f) the address of the entity that will award the contract and that will provide any information necessary for obtaining specifications and other documents; (g) a statement of any economic or technical requirements and of any financial guarantees, information and documents required from suppliers; (h) the amount and terms of payment of any sum payable for the tender documentation; and (i) a statement as to whether the entity is inviting offers for purchase, lease or rental, with or without an option to buy. 3. Notwithstanding paragraph 2, an entity listed in Annex 1001.1a-2 or 1001.1a-3 may use as an invitation to participate a notice of planned procurement that shall contain as much of the information referred to in paragraph 2 as is available to the entity, but that shall include, at a minimum, the following information: (a) a description of the subject matter of the procurement; (b) the time limits set for the receipt of tenders or applications to be invited to tender; (c) the address to which requests for documents relating to the procurement should be submitted; (d) a statement that interested suppliers should express their interest in the procurement to the entity; and (e) the identification of a contact point within the entity from which further information may be obtained. 4. An entity that uses a notice of planned procurement as an invitation to participate shall subsequently invite suppliers that have expressed an interest in the procurement to confirm their interest on the basis of information provided by the entity, which shall include at least the information referred to in paragraph 2. (h) if, pursuant to Article 15.9 (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, if applicable, any limitation on the number of suppliers that will be permitted to tender; and (c) if applicable, the time-frame for delivery of goods or services or the duration of the contract; (d) if applicable, the address and any final date for the submission of requests for participation in the procurement; (f) the language or languages in which tenders or requests for participation may be submitted, if other than an official language of the Party of the procuring entity; (e) the address and the final date for the submission of tenders; (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 the cost and terms of payment to obtain the relevant documents, if any; (g) a list and a brief description of any conditions for participation of suppliers, that may include any related requirements for specific documents or certifications that suppliers must provide; Prepared by the Law Offices of Stewart and Stewart Page 10 of 87
5. Notwithstanding paragraph 2, an entity listed in Annex 1001.1a-2 or 1001.1a-3 may use as an invitation to participate a notice regarding a qualification system. An entity that uses such a notice shall, subject to the considerations referred to Article 1015(8), provide in a timely manner information that allows all suppliers that have expressed an interest in participating in the procurement to have a meaningful opportunity to assess their interest. The information shall normally include the information required for notices referred to in paragraph 2. Information provided to any interested supplier shall be provided in a non-discriminatory manner to all other interested suppliers. 6. In the case of selective tendering procedures, an entity that maintains a permanent list of qualified suppliers shall publish annually in the appropriate publication referred to in Annex 1010.1 a notice containing the following information: (a) an enumeration of any such lists maintained, including their headings, in relation to the goods or services or categories of goods or services to be procured through the lists; (b) the conditions to be fulfilled by suppliers in view of their inscription on the lists and the methods according to which each of those conditions will be verified by the entity concerned; and (c) the period of validity of the lists and the formalities for their renewal. 7. Where, after publication of an invitation to participate, but before the time set for the opening or receipt of tenders as specified in the notices or the tender documentation, an entity finds that it has become necessary to amend or reissue the notice or tender documentation, the entity shall ensure that the amended or reissued notice or tender documentation is given the same circulation as the original. Any significant information given by an entity to a supplier with respect to a particular procurement shall be given simultaneously to all other interested suppliers and sufficiently in advance so as to provide all suppliers concerned adequate time to consider the information and to respond. 8. An entity shall indicate in the notices referred to in this Article that the procurement is covered by this Chapter. (i) an indication that the procurement is covered by this Chapter, unless that indication is publicly available through information published pursuant to Article 15.6.2 (Publication of Procurement Information). 4. For greater certainty, paragraph 3 does not preclude a Party from charging a fee for tender documentation if the notice of intended procurement includes all of the information set out in paragraph 3. 5. For the purposes of this Chapter, each Party shall endeavour to use English as the language for publishing the notice of intended procurement. Notice of Planned Procurement 6. Procuring entities are encouraged to publish as early as possible in each fiscal year a notice regarding their future procurement plans (notice of planned procurement), which should include the subject matter of the procurement and the planned date of publication of the notice of intended procurement. Article 1011: Selective Tendering Procedures Prepared by the Law Offices of Stewart and Stewart Page 11 of 87
1. To ensure optimum effective competition between the suppliers of the Parties under selective tendering procedures, an entity shall, for each procurement, invite tenders from the maximum number of domestic suppliers and suppliers of the other Parties, consistent with the efficient operation of the procurement system. 2. Subject to paragraph 3, an entity that maintains a permanent list of qualified suppliers may select suppliers to be invited to tender for a particular procurement from among those listed. In the process of making a selection, the entity shall provide for equitable opportunities for suppliers on the list. 3. Subject to Article 1009(2)(f), an entity shall allow a supplier that requests to participate in a particular procurement to submit a tender and shall consider the tender. The number of additional suppliers permitted to participate shall be limited only by the efficient operation of the procurement system. 4. Where an entity does not invite or admit a supplier to tender, the entity shall, on request of the supplier, promptly provide pertinent information concerning its reasons for not doing so. Article 1012: Time Limits for Tendering and Delivery 1. An entity shall: (a) in prescribing a time limit, provide adequate time to allow suppliers of another Party to prepare and submit tenders before the closing of the tendering procedures; (b) in determining a time limit, consistent with its own reasonable needs, take into account such factors as the complexity of the procurement, the extent of subcontracting anticipated, and the time normally required for transmitting tenders by mail from foreign as well as domestic points; and (c) take due account of publication delays when setting the final date for receipt of tenders or applications to be invited to tender. 2. Subject to paragraph 3, an entity shall provide that: (a) in open tendering procedures, the period for the receipt of tenders is no less than 40 days from the date of publication of a notice in accordance with Article 1010; (b) in selective tendering procedures not involving the use of a permanent list of qualified suppliers, the period for submitting an application to be invited to tender is no less than 25 days from the date of publication of a notice in accordance with Article 1010, and the period for receipt of tenders is no less than 40 days from the date of issuance of the invitation to tender; and Article 15.14: Time Periods General 1. A procuring entity shall, consistent with its own reasonable needs, provide sufficient time for a supplier to obtain the tender documentation and to prepare and submit a request for participation and a responsive tender, taking into account factors such as: (a) the nature and complexity of the procurement; and (b) the time necessary for transmitting tenders by non-electronic means from foreign as well as domestic points if electronic means are not used. Deadlines 3. Except as provided 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 procuring entity notifies the suppliers that they will be invited to submit tenders, whether or not it uses a multi-use list. 2. A procuring entity that uses selective tendering shall establish that the final date for the submission of a request for participation shall not, in principle, be less than 25 days from the date of publication of the notice of intended procurement. If a state of urgency duly substantiated by the procuring entity renders this time period impracticable, the time period may be reduced to no less than 10 days. Prepared by the Law Offices of Stewart and Stewart Page 12 of 87
(c) in selective tendering procedures involving the use of a permanent list of qualified suppliers, the period for receipt of tenders is no less than 40 days from the date of the initial issuance of invitations to tender, but where the date of initial issuance of invitations to tender does not coincide with the date of publication of a notice in accordance with Article 1010, there shall not be less than 40 days between those two dates. 3. An entity may reduce the periods referred to in paragraph 2 in accordance with the following: (a) where a notice referred to Article 1010(3) or (5) has been published for a period of no less than 40 days and no more than 12 months, the 40-day limit for receipt of tenders may be reduced to no less than 24 days; 4. 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) the tender documentation is made available by electronic means from the date of the publication of the notice of intended procurement; and (c) the procuring entity accepts tenders by electronic means. 5. A procuring entity may reduce the time period for tendering set out in paragraph 3 to no less than 10 days if: (a) the procuring entity has published a notice of planned procurement under Article 15.7 (Notices of Intended Procurement) at least 40 days and no 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) the address from which documents relating to the procurement may be obtained; and (iv) as much of the information that is required for the notice of intended procurement as is available; (b) in the case of the second or subsequent publications dealing with recurring contracts within the meaning of Article 1010(2)(a), the 40-day limit for receipt of tenders may be reduced to no less than 24 days; (c) where a state of urgency duly substantiated by the entity renders (b) a state of urgency duly substantiated by the procuring entity impracticable the periods in question, the periods may be reduced renders impracticable the time period for tendering set out in to no less than 10 days from the date of publication of a notice in paragraph 3; or accordance with Article 1010; or (d) where an entity listed in Annex 1001.1a-2 or 1001.1a- 3 is using as an invitation to participate a notice referred to in Article 1010(5), the periods may be fixed by mutual agreement between the entity and all selected suppliers but, in the absence of agreement, the entity may fix periods that shall be sufficiently long to allow for responsive bidding and in any event shall be no less than 10 days. (c) the procuring entity procures commercial goods or services. 4. An entity shall, in establishing a delivery date for goods or services and consistent with its own reasonable needs, take into account such factors as the complexity of the procurement, the extent of subcontracting anticipated and the time realistically required for production, destocking and transport of goods from the points of supply. 6. The use of paragraph 4, in conjunction with paragraph 5, shall in no case result in the reduction of the time periods for tendering set out in paragraph 3 to less than 10 days. 7. A procuring entity shall require all interested or participating suppliers to submit requests for participation or tenders in accordance with a common deadline. These time periods, and any extension of these time periods, shall be the same for all interested or participating suppliers. Prepared by the Law Offices of Stewart and Stewart Page 13 of 87
Article 1013: Tender Documentation Article 15.13: Tender Documentation 1. Where an entity provides tender documentation to suppliers, the 1. A procuring entity shall promptly make available or provide on documentation shall contain all information necessary to permit request to any interested supplier tender documentation that suppliers to submit responsive tenders, including information includes all information necessary to permit the supplier to prepare required to be published in the notice referred to in Article 1010(2), and submit a responsive tender. Unless already provided in the except for the information required under Article 1010(2)(h). The notice of intended procurement, that tender documentation shall documentation shall also include: include a complete description of: (a) the address of the entity to which tenders should be submitted; (b) the address to which requests for supplementary information should be submitted; (c) the language or languages in which tenders and tendering documents may be submitted; (d) the closing date and time for receipt of tenders and the length of time during which tenders should be open for acceptance; (e) the persons authorized to be present at the opening of tenders (d) if there will be a public opening of tenders, the date, time and and the date, time and place of the opening; place for the opening; (f) a statement of any economic or technical requirements and of (b) any conditions for participation, including any financial any financial guarantees, information and documents required from guarantees, information and documents that suppliers are required suppliers; to submit; (g) a complete description of the goods or services to be procured and any other requirements, including technical specifications, conformity certification and necessary plans, drawings and instructional materials; (a) the procurement, including the nature, scope and, if known, the quantity of the good or service to be procured or, if 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; (h) the criteria for awarding the contract, including any factors other (c) all criteria to be considered in the awarding of the contract and than price that are to be considered in the evaluation of tenders and the relative importance of those criteria; the cost elements to be included in evaluating tender prices, such as transportation, insurance and inspection costs, and in the case of goods or services of another Party, customs duties and other import charges, taxes and the currency of payment; (i) the terms of payment; and (j) any other terms or conditions. (e) any other terms or conditions relevant to the evaluation of tenders; and (f) any date for delivery of a good or supply of a service. 2. In establishing any date for the delivery of a good or the supply of a service being procured, a procuring entity shall take into account factors such as the complexity of the procurement. 2. An entity shall: (a) forward tender documentation on the request of a supplier that is participating in open tendering procedures or has requested to participate in selective tendering procedures, and reply promptly to any reasonable request for explanations relating thereto; and (b) reply promptly to any reasonable request for relevant information made by a supplier participating in the tendering procedure, on condition that such information does not give that supplier an advantage over its competitors in the procedure for the award of the contract. 3. A procuring entity shall promptly reply to any reasonable request for relevant information by an interested or participating supplier, provided that the information does not give that supplier an advantage over other suppliers. Modifications 4. If, prior to the award of a contract, a procuring entity modifies the evaluation criteria or requirements set out in a notice of intended procurement or tender documentation provided to a participating supplier, or amends or re-issues a notice or tender documentation, it shall publish or provide those modifications, or the amended or reissued notice or tender documentation: Prepared by the Law Offices of Stewart and Stewart Page 14 of 87