For the purposes of this Chapter: Show
build-operate-transfer contract and public works concession contract means a contractual arrangement the primary purpose of which is to provide for the construction or rehabilitation of physical infrastructure, plants, buildings, facilities or other government-owned works and under which, as consideration for a supplier's execution of a contractual arrangement, a procuring entity grants to the supplier, for a specified period of time, temporary ownership or a right to control and operate, and demand payment for the use of those works for the duration of the contract; commercial goods or services means goods or services of a type generally sold or offered for sale in the commercial marketplace to, and customarily purchased by, non-governmental buyers for non-governmental purposes; in writing or written means any worded or numbered expression that can be read, reproduced and may be later communicated. It may include electronically transmitted and stored information; limited tendering means a procurement method whereby the procuring entity contacts a supplier or suppliers of its choice; multi-use list means a list of suppliers that a procuring entity has determined satisfy the conditions for participation in that list and that the procuring entity intends to use more than once; notice of intended procurement means a notice published by a procuring entity inviting interested suppliers to submit a request for participation, a tender or both; offset means any condition or undertaking that requires the use of domestic content, a domestic supplier, the licensing of technology, technology transfer, investment, counter-trade or similar action to encourage local development or to improve a Party's balance of payments accounts; open tendering means a procurement method whereby all interested suppliers may submit a tender; procuring entity means an entity listed in Annex 14-A; publish means to disseminate information through paper or electronic means that is distributed widely and is readily accessible to the general public; qualified supplier means a supplier that a procuring entity recognises as having satisfied the conditions for participation; selective tendering means a procurement method whereby the procuring entity invites only qualified suppliers to submit a tender; services include construction services, unless otherwise specified; supplier means a person or group of persons that provides or could provide a good or service to a procuring entity; and technical specification means a tendering requirement that:
Article 14.2: ScopeApplication of Chapter1. This Chapter shall apply to any measure regarding covered procurement. 2. For the purposes of this Chapter, covered procurement means government procurement:
Activities Not Covered3. Unless otherwise provided in a Party's Schedule to Annex 14-A, this Chapter shall not apply to:
Schedules4. Each Party shall specify the following information in its Schedule to Annex 14-A:
Compliance5. 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. Valuation8. In estimating the value of a procurement for the purposes of ascertaining whether it is a covered procurement, a procuring entity shall include the estimated maximum total value of the procurement over its entire duration, taking into account:
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 14.3: Exceptions1. Subject to the requirement that the measure is not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between Parties where the same conditions prevail, or a disguised restriction on international trade between the Parties, nothing in this Chapter shall be construed to prevent a Party, including its procuring entities, from adopting or maintaining a measure:
2. The Parties understand that subparagraph 1(b) includes environmental measures necessary to protect human, animal or plant life or health. Article 14.4: General PrinciplesNational Treatment and Non-Discrimination1. 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 the other Party and to the suppliers of the other Party, treatment no less favourable than the treatment that the Party, including its procuring entities, accords to domestic goods, services and suppliers. 2. With respect to any measure regarding covered procurement, neither Party, including its procuring entities, shall:
3. All orders under contracts awarded for covered procurement shall be subject to paragraphs 1 and 2 of this Article. Procurement Methods4. A procuring entity shall use an open tendering procedure for covered procurement unless Article 14.8 or Article 14.9 applies. Rules of Origin5. 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. Offsets6. With regard to covered procurement, neither Party, including its procuring entities, shall seek, take account of, impose or enforce any offset, at any stage of a procurement. Measures Not Specific to Procurement7. 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. Use of Electronic Means8. 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:
Article 14.5: Publication of Procurement Information1. Each Party shall promptly publish any measure of general application relating to covered procurement, and any change or addition to this information. 2. Each Party shall list in Section I of its Schedule to Annex 14-A the paper or electronic means through which the Party publishes the information described in paragraph 1 and the notices required by Article 14.6, Article 14.8.3 and Article 14.14.3. 3. Each Party shall, on request, respond to an inquiry relating to the information referred to in paragraph 1. Article 14.6: Notices of Intended Procurement1. For each covered procurement, except in the circumstances described in Article 14.9, a procuring entity shall publish a notice of intended procurement through the appropriate paper or electronic means listed in Annex 14-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 notices shall, if accessible by electronic means, be provided free of charge:
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:
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. Notice of Planned Procurement 5. Procuring entities are encouraged to publish as early as possible in each fiscal year a notice regarding their future procurement plans (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 14.7: Conditions for Participation1. 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. 2. In establishing the conditions for participation, a procuring entity:
3. In assessing whether a supplier satisfies the conditions for participation, a procuring entity shall:
4. If there is supporting material, a Party, including its procuring entities, may exclude a supplier on grounds such as:
Article 14.8: Qualification of SuppliersRegistration Systems and Qualification Procedures1. 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. Neither Party, including its procuring entities, shall:
Selective Tendering3. 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:
4. The procuring entity shall:
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 Lists6. 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:
7. A Party, including its procuring entities, that establishes or maintains a multi-use list, shall include on the list, within a reasonable period of time, all suppliers that satisfy the conditions for participation set out in the notice referred to in paragraph 6. Information on Procuring Entity Decisions8. 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. 9. 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. 10. The Parties agree to delay the application of the requirements contained under Article 14.8.6(d) and (f) of this Chapter for a period of 3 years from the date of entry into force of this Agreement. Article 14.9: Limited Tendering1. Provided that it does not use this provision for the purpose of avoiding competition between suppliers, to protect domestic suppliers or in a manner that discriminates against suppliers of the other Party, a procuring entity may use limited tendering. 2. If a procuring entity uses limited tendering, it may choose, according to the nature of the procurement, not to apply Article 14.6, Article 14.7, Article 14.8, Article 14.10, Article 14.11, Article 14.12 or Article 14.13. A procuring entity may use limited tendering only under the following circumstances:
provided that the procuring entity does not substantially modify the essential requirements set out in the notices or tender documentation;
3. For each contract awarded in accordance with paragraph 2, a procuring entity shall prepare a report in writing, or maintain a record, that includes the name of the procuring entity, the value and kind of good or service procured, and a statement that indicates the circumstances and conditions described in paragraph 2 that justified the use of limited tendering. Article 14.10: Technical Specifications1. 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:
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. 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. 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. 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. Article 14.11: Tender Documentation1. A procuring entity shall promptly make available or provide on request to any interested supplier tender documentation that includes all information necessary to permit the supplier to prepare and submit a responsive tender. Unless already provided in the notice of intended procurement, that tender documentation shall include a complete description of:
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. 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. Modifications4. 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 re-issued notice or tender documentation:
Article 14.12: Time PeriodsGeneral1. 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:
Deadlines2. 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. 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:
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:
5. A procuring entity may reduce the time period for tendering set out in paragraph 3 to no less than 10 days if:
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. Article 14.13: Treatment of Tenders and Awarding of ContractsTreatment of Tenders1. 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. If a procuring entity provides a supplier with an opportunity to correct unintentional errors of form between the opening of tenders and the awarding of the contract, the procuring entity shall provide the same opportunity to all participating suppliers. Awarding of Contracts3. To be considered for an award, a tender shall be submitted in writing and shall, at the time of opening, comply with the essential requirements set out in the notice and tender documentation and be submitted by a supplier who satisfies the conditions for participation. 4. Unless a procuring entity determines that it is not in the public interest to award a contract, it shall award the contract to the supplier that the procuring entity has determined to be fully capable of fulfilling the terms of the contract and that, based solely on the evaluation criteria specified in the notice and tender documentation, submits:
5. A procuring entity shall not use options, cancel a covered procurement, or modify or terminate awarded contracts in order to avoid the obligations of this Chapter. Article 14.14: Post-Award InformationInformation Provided to Suppliers1. A procuring entity shall promptly inform suppliers that have submitted a tender of the contract award decision. The procuring entity may do so in writing or through the prompt publication of the notice in paragraph 3, provided that the notice includes the date of award. If a supplier has requested the information in writing, the procuring entity shall provide it in writing. 2. Subject to Article 14.15, a procuring entity shall, on request, provide an unsuccessful supplier with an explanation of the reasons why the procuring entity did not select the unsuccessful supplier's tender or an explanation of the relative advantages of the successful supplier's tender. Publication of Award Information3. A procuring entity shall, promptly after the award of a contract for a covered procurement, publish in an officially designated publication a notice containing at least the following information:
Maintenance of Records4. A procuring entity shall maintain the documentation, records and reports relating to tendering procedures and contract awards for covered procurement, including the records and reports provided for in Article 14.9.3, for at least three years after the award of a contract. Article 14.15: Disclosure of InformationProvision of Information to Parties1. Upon request of the other Party, a Party shall provide promptly information sufficient to demonstrate whether a procurement was conducted fairly, impartially and in accordance with this Chapter, including, if applicable, information on the characteristics and relative advantages of the successful tender, without disclosing confidential information. The Party that receives the information shall not disclose it to any supplier, except after consulting with, and obtaining the agreement of, the Party that provided the information. Non-Disclosure of Information2. Notwithstanding any other provision of this Chapter, a Party, including its procuring entities, shall not, except to the extent required by law or with the written authorisation of the supplier that provided the information, disclose information that would prejudice legitimate commercial interests of a particular supplier or that might prejudice fair competition between suppliers. 3. Nothing in this Chapter shall be construed to require a Party, including its procuring entities, authorities and review bodies, to disclose confidential information if that disclosure:
Article 14.16: Ensuring Integrity in Procurement PracticesEach Party shall ensure that criminal or administrative measures exist to address corruption in its government procurement. These measures may include procedures to render ineligible for participation in the Party's procurements, either indefinitely or for a stated period of time, suppliers that the Party has determined to have engaged in fraudulent or other illegal actions in relation to government procurement in the Party's territory. Each Party shall also ensure that it has in place policies and procedures to eliminate to the extent possible or manage any potential conflict of interest on the part of those engaged in or having influence over a procurement. Article 14.17: Domestic Review1. In the event of a complaint by a supplier of a Party that there has been:
in the context of a covered procurement in which the supplier has or had an interest, the Party of the procuring entity shall encourage the supplier to seek resolution of its complaint in consultation with the procuring entity. In such instances the procuring entity shall accord timely and impartial consideration to any such complaint and ensure that the making of any such complaint is not prejudicial to the supplier's participation in ongoing or future procurement or right to seek corrective measures under administrative or judicial review procedures. 2. Each Party shall maintain at least one impartial administrative or judicial authority that is independent of its procuring entities to receive and review, in a non-discriminatory, timely, transparent and effective manner, complaints that a supplier of the other Party submits, in accordance with the laws and regulations of the Party of the procuring entity, relating to a covered procurement. 3. Each Party shall make information on complaint mechanisms generally available. 4. If the Revised Agreement on Government Procurement, set out in Annex 4 to the WTO Agreement (Revised GPA) enters into force for Australia, the present Article shall be deemed to be amended at that time so as to conform to the provisions of Article XVIII (Domestic Review Procedures) of the Revised GPA. Article 14.18: Modifications and Rectifications of Annex 14-A1. A Party shall notify the other Party in writing of any proposed modification or rectification (modification) to its Schedule to Annex 14-A. A Party shall provide compensatory adjustments for a change in coverage if necessary to maintain a level of coverage comparable to the coverage that existed prior to the modification. The Party may include the offer of compensatory adjustment in its notice. 2. A Party is not required to provide compensatory adjustments to the other Party if the proposed modification concerns one of the following:
and the other Party does not object under paragraph 3 on the basis that the proposed modification does not concern subparagraph (a) or subparagraph (b). 3. Proposed modifications shall become effective provided the other Party does not object in writing within 30 days after the date of notification. 4. When the Parties do not agree on a proposed modification, including a modification regarding a procuring entity on the basis that government control or influence over the entity's covered procurement has been effectively eliminated, the objecting Party may request additional information including information on the nature of any government control or influence with a view to clarifying and reaching agreement on the proposed modification. The Parties shall make every attempt to resolve the objection through consultations. 5. The Joint Commission shall modify Annex 14-A to reflect any agreed modification. Article 14.19: Facilitation of Participation by SMEs1. The Parties recognise the important contribution that SMEs can make to economic growth and employment and the importance of facilitating the participation of SMEs in government procurement. 2. The Parties also recognise the contribution of business alliances between suppliers of each Party in developing the capability of SMEs in government procurement. 3. If a Party maintains a measure that provides preferential treatment for SMEs, the Party shall ensure that the measure, including the criteria for eligibility, is transparent. Article 14.20: Cooperation1. The Parties recognise the importance of cooperation with a view to achieving a better understanding of their respective government procurement systems, as well as better access to their respective markets, in particular for SMEs suppliers. 2. The Parties shall endeavour to cooperate in matters such as:
Article 14.21: Contact Points on Government ProcurementEach Party shall designate and notify a contact point on Government Procurement. The contact points shall facilitate the Parties' efforts to address matters related to the implementation and operation of this Chapter, such as:
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