Chapter Ten

Government Procurement

Article 1001: Objectives

The Parties shall strive to achieve the liberalization of

their measures regarding government procurement, as specified by

the obligations in this Chapter, so as to provide balanced,

non-discriminatory, predictable and transparent government

procurement opportunities for the suppliers of each Party.

Article 1002: Scope and Coverage

1. Subject to Annexes 1002.1 through 1002.7, this Chapter applies

to any measure regarding the procurement of goods or services or

any combination thereof, by any entity listed in Annex 1002.1

(Federal Government Entities), Annex 1002.3 (Government

Enterprises) and, when completed, Annex 1002.2 (State and

Provincial Government Entities), where the value of the contract to

be awarded is estimated, at the time of publication of a notice in

accordance with Article 1010 (Invitation to Participate), to equal

or exceed the applicable threshold as set forth in paragraph 3.

2. Where the contract to be awarded by the entity is not covered

by this Chapter, this Chapter shall not be construed to cover any

good or service component of that contract. However, no Party shall

prepare, design or otherwise structure any procurement contract in

order to avoid the obligations of this Chapter.

3. Subject to Annex 1002-A, the applicable thresholds in U.S.

dollars are:

(a) for entities listed in Annex 1002.1 (Federal Government

Entities),

(i) $50,000 for goods contracts,

(ii) $50,000 for services contracts, except for

construction services contracts, and

(iii) $6.5 million for construction services

contracts; and

(b) for entities listed in Annex 1002.3 (Government

Enterprises)

(i) $250,000 for goods contracts,

(ii) $250,000 for services contracts, except for

construction services contracts, and

(iii) $8.0 million for construction services

contracts.

4. Threshold values are denominated in real terms and therefore

shall incorporate the inflation rate of the United States. The

United States shall, every two years, calculate and notify to the

other Parties the threshold values denominated in nominal terms

according to of Annex 1002.8 (1) (Indexation and Conversion of

Thresholds).

5. Each Party shall comply with Annex 1002.8 with respect to the

calculation and conversion of the value of thresholds into national

currencies.

6. For purposes of this Chapter, procurement includes procurement

by such methods as purchase, lease or rental, with or without an

option to buy, in accordance with the thresholds and coverage

applicable in this Chapter. Procurement does not include the

acquisition of fiscal agency or depository services, liquidation

and management services for regulated financial institutions and

sale and distribution services for government debt.

7. As between any Parties who are also party to the GATT

Agreement on Government Procurement or any successor agreement to

which such Parties are party, this Chapter shall prevail to the

extent of any inconsistency between the provisions of such

agreement and this Chapter.

Article 1003: Valuation of Contracts

1. Each Party shall ensure that its entities, in determining

whether any contract is subject to this Chapter, apply paragraphs

2 through 6 in calculating the value of that contract.

2. An entity, in calculating the value of a contract, shall take

into account all forms of remuneration, including premiums, fees,

commissions and interest.

3. An entity shall not select a valuation method, or divide

procurement requirements into separate contracts, to avoid the

application of this Chapter.

4. Where an individual requirement for a procurement results in:

(a) the award of more than one contract, or

(b) in contracts being awarded in separate parts,

the basis for valuation shall be either:

(c) the actual value of similar recurring contracts concluded

over the previous fiscal year or 12 months adjusted,

where possible, for anticipated changes in quantity and

value over the subsequent twelve months; or

(d) the estimated value of recurring contracts in the fiscal

year or 12 months subsequent to the initial contract.

5. 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 fixed-term 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 forth in subparagraph (b).

6. In cases in which tender documentation specifies the need for

optional purchases, the basis for valuation shall be the total

value of the maximum permissible procurement, inclusive of all

possible optional purchases.

Article 1004: National Treatment and Non-discrimination

1. With respect to all measures regarding government procurement

covered by this Chapter, each Party shall accord to goods of any

other Party, as determined in accordance with the rules of origin

referred to in Article 1005(1) (Rules of Origin), to services of

any other Party, as determined in accordance with Article 1005(2),

and to the suppliers of such goods or services, treatment no less

favorable than the most favorable treatment that it accords to:

(a) goods, services and suppliers of that Party; and

(b) goods, services and suppliers of any other Party.

2. With respect to all measures regarding government procurement

covered by this Chapter, no Party may:

(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 if

the goods or services offered by that supplier for the

particular procurement are goods or services of any other

Party.

3. Paragraph 1 does 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, and other import regulations,

including restrictions and formalities.

4. Each Party reserves the right to deny to an enterprise of any

other Party the benefits of this Chapter in accordance with the

provisions of Article 1113 (Denial of Benefits), except

subparagraph (a).

Article 1005: Rules of Origin

1. No Party shall apply to goods that are imported from any other

Party for purposes of government procurement covered by this

Chapter, rules of origin that are different from or inconsistent

with the rules of origin the Party applies in the normal course of

trade, which will be the non-preferential rules set out in Chapter

Three (for country of origin marking purposes) at such time as they

become the rules of origin applied in the normal course of trade.

2. Notwithstanding any other provision of this Chapter, a Party

may deny to an enterprise that is a supplier of services of another

Party the benefits of this Chapter if:

(a) nationals of any non-Party own or control that

enterprise; and

(b) that enterprise has no substantial business activities in

the territory of the Party under whose laws it is

constituted.

Article 1006: Prohibition of Offsets

Each Party shall ensure that its entities do not, in the

qualification and selection of suppliers, goods or services, or in

the evaluation of bids and the award of contracts, consider, seek

or impose offsets.

Article 1007: Technical Specifications

1. Each Party shall ensure that its entities do not, with the

purpose or the effect of creating unnecessary obstacles to trade,

prepare, adopt or apply any technical specification laying down:

(a) the characteristics of the goods or services to be

procured such as quality, performance, safety and

dimensions, symbols, terminology, packaging, marking and

labelling;

(b) the processes and methods for their production related to

the goods characteristics; or

(c) requirements relating to conformity assessment.

2. Each Party shall ensure that any technical specification

prescribed by its entities is, where 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 service provider 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.

4. Each Party shall ensure that its entities do 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 that procurement.

Article 1008:Tendering Procedures

1. Each Party shall ensure that the tendering procedures of its

entities:

(a) are applied in a non-discriminatory manner; and

(b) are consistent with the provisions of this Article and

with Articles 1009 (Qualification of Suppliers) through

1016 (Limited Tendering).

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. No entity of a Party may, in the process of qualifying

suppliers in tendering procedures, discriminate between suppliers

of the other Parties or between domestic suppliers and suppliers of

the other Parties.

2. The qualification procedures followed by an entity of a Party

shall be consistent with the following:

(a) any 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) any 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;

(c) the financial, commercial and technical capacity of a

supplier shall be judged both on the basis of that

supplier's global business activity and its activity, if

any, in the territory of the Party of the procuring

entity;

(d) no entity may misuse the process of, including the time

required for, qualification in order to exclude suppliers

of any other Party from a suppliers' list or from being

considered for a particular procurement;

(e) an entity shall recognize as qualified suppliers those

suppliers of any other Party that meet the conditions for

participation in a particular procurement;

(f) an entity shall consider for a particular procurement

those suppliers of any other 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 any such list or of their removal from it;

(h) if, after publication of a notice in accordance with

Article 1010 (Invitation to Participate), 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, upon 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, upon request of any other Party, to demonstrate

such need; and

(b) make efforts to minimize differences in the qualification

procedures of its entities.

4. Nothing in paragraphs 2 and 3 shall prevent an entity from

excluding any supplier on grounds such as bankruptcy or false

declarations.

Article 1010: Invitation to Participate

1. An entity shall, in accordance with paragraphs 2, 3 and 5,

publish an invitation to participate for all procurements, except

as otherwise provided for in Article 1016 (Limited Tendering), in

the appropriate publication listed in Annex 1010.1 (Publications).

2. The invitation to participate shall take the form of a notice

of proposed procurement, which notice shall contain the following

information:

(a) a description of the nature and quantity of the goods or

services to be procured, including any options for

further procurement and, if possible

(i) an estimate of the timing when such options may be

exercised, and

(ii) in the case of recurring contracts, an estimate of

the timing of the subsequent tender notices for the

goods or services to be procured;

(b) a statement as to whether the procedure is open or

selective and whether it will involve negotiation;

(c) any date for starting delivery, or completion of

delivery, of 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 such an

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 and technical requirements to

be met 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, or more than one of these methods.

3. Notwithstanding paragraph 2, any entity listed in Annex 1002.2

(State and Provincial Government Entities) or Annex 1002.3

(Government Enterprises) may use, as an invitation to participate,

a notice of planned procurement, which shall contain as much of the

information referred to in paragraph 2 as is available to the

entity but which 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 an

application to be invited to tender;

(c) the address at which requests for documents relating to

the procurement should be made;

(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. Any 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

information shall include at least the information referred to in

paragraph 2.

5. Notwithstanding paragraph 2, any entity listed in Annex 1002.2

(State and Provincial Government Entities) or Annex 1002.3

(Government Enterprises) may use, as an invitation to participate,

a notice regarding a qualification system. Any entity that uses

such a notice shall, subject to the considerations referred to

Article 1015 (8) (Submission, Receipt and Opening of Tenders and

Awarding of Contracts), 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 contained in the notices referred to in paragraph

2. Information provided to one interested supplier shall be

provided in a non-discriminatory manner to all other interested

suppliers.

6. In the case of selective tendering procedures, any entity that

maintains a permanent list of qualified suppliers shall publish

annually in one of the publications listed in Annex 1010.1

(Publications) a notice containing the following information:

(a) an enumeration of any 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 referred to in

subparagraph (a) 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. If, 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 one supplier with respect to a particular procurement

shall be given simultaneously to all other suppliers concerned and

sufficiently in advance so as to provide all suppliers concerned

adequate time to consider such information and to respond to it.

8. An entity shall indicate, in the notices referred to in this

Article or in the publication in which the notices appear, that the

procurement is covered by this Chapter.

Article 1011: Selective Tendering Procedures

1. To ensure optimum effective competition between the suppliers

of all Parties under selective tendering procedures, an entity of

a Party 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, any 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 any selection, the entity shall provide for

equitable opportunities for suppliers on the list.

3. Subject to Article 1009 (2)(f) (Qualification of Suppliers),

an entity shall allow any 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. If an entity does not invite or admit a supplier to tender,

the entity shall, upon 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 of a Party shall:

(a) in prescribing any time limit, provide adequate time to

allow suppliers of the other Parties to prepare and

submit tenders before the closing of the tendering

procedures;

(b) in determining any 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 procedures, the period for the receipt of tenders

is no less than 40 days from the date of publication of

the notice referred to in Article 1010 (Invitation to

Participate);

(b) in selective 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 the

notice referred to in Article 1010 (Invitation to

Participate), and the period for receipt of tenders is no

less than 40 days from the date of issuance of the

invitation to tender; and

(c) in selective 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. If the date of

initial issuance of invitations to tender does not

coincide with the date of publication of the notice

referred to in Article 1010 (Invitation to Participate),

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)

(Invitation to Participate) 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;

(b) in the case of the second or subsequent publications

dealing with recurring contracts within the meaning of

Article 1010 (2) (Invitation to Participate), 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 impracticable the periods in question, the

periods may be reduced to no less than 10 days from the

date of publication of the notice referred to in Article

1010 (Invitation to Participate); or

(d) where an entity listed in Annex 1002.2 (State and

Provincial Government Entities) or Annex 1002.3

(Government Enterprises) is using as an invitation to

participate a notice referred to in of Article 1010 (5)

(Invitation to Participate), 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 which shall be sufficiently long to

enable responsive bidding and shall not be less than 10

days.

4. An entity shall, in establishing any 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.

Article 1013: Tender Documentation

1. Where an entity provides tender documentation to suppliers,

the documentation shall contain all information necessary to permit

suppliers to submit responsive tenders, including information

required to be published in the notice of procurement, except for

Article 1010 (2)(h) (Invitation to Participate). It must also

include the following information:

(a) the address of the entity to which tenders should be

sent;

(b) the address where requests for supplementary information

should be sent;

(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 any tender should be open for

acceptance;

(e) the persons authorized to be present at the opening of

tenders and the date, time and place of the opening;

(f) a statement of any economic and technical requirement to

be met and of any financial guarantee, information and

documents required from suppliers;

(g) a complete description of the goods or services required

and any requirements to be fulfilled, including technical

specifications, conformity certification and necessary

plans, drawings and instructional materials;

(h) the criteria for awarding the contract, including any

factors other than price that are to be considered in the

evaluation of tenders and the cost elements to be

included in evaluating tender prices, such as transport,

insurance and inspection costs, and in the case of goods

or services of any other Party, customs duties and other

import charges, taxes and currency of payment;

(i) the terms of payment; and

(j) any other terms or conditions.

2. An entity shall:

(a) forward tender documentation at the request of any

supplier that is participating in open procedures or has

requested to participate in selective 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.

Article 1014: Negotiation Disciplines

1. An entity may conduct negotiations:

(a) in the context of procurements in which the entity has,

in the notice referred to in Article 1010 (Invitation to

Participate), indicated its intent to negotiate; or

(b) when it appears from the evaluation of the tenders that

no one tender is obviously the most advantageous in terms

of the specific evaluation criteria set forth in the

notices or tender documentation.

2. Negotiations shall be used primarily to identify the strengths

and weaknesses in the tenders.

3. An entity shall treat all tenders in confidence. In

particular, an entity may not provide to any person information

intended to assist any supplier to bring its tender up to the level

of any other tender.

4. An entity may not, in the course of negotiations, discriminate

between different suppliers. In particular, an entity shall:

(a) carry out any elimination of suppliers in accordance with

the criteria set forth in the notices and tender

documentation;

(b) provide in writing all modifications to the criteria or

to the technical requirements to all suppliers remaining

in the negotiations;

(c) permit all remaining suppliers to submit new or amended

tenders on the basis of the revised criteria or

requirements; and

(d) when negotiations are concluded, permit all remaining

suppliers to submit final tenders in accordance with a

common deadline.

Article 1015: Submission, Receipt and Opening of Tenders and

Awarding of Contracts

1. An entity shall use procedures for the submission, receipt and

opening of tenders and the awarding of contracts that are

consistent with the following:

(a) tenders shall normally be submitted in writing directly

or by mail;

(b) if tenders by telex, telegram, telecopy or other means of

electronic transmission are permitted, the tender made

thereby must include all the information necessary for

the evaluation of the tender, in particular the

definitive price proposed by the supplier and a statement

that the supplier agrees to all the terms, conditions and

provisions of the invitation to tender;

(c) a tender made by telex, telegram, telecopy or other means

of electronic transmission must be confirmed promptly by

letter or by the dispatch of a signed copy of the telex,

telegram, telecopy or electronic message;

(d) the content of the telex, telegram, telecopy or

electronic message shall prevail where there is a

difference or conflict between that content and the

content of any documentation received after the time

limit for submission of tenders;

(e) tenders presented by telephone shall not be permitted;

(f) requests to participate in selective tendering procedures

may be submitted by telex, telegram or telecopy and if

permitted, may be submitted by other means of electronic

transmission; and

(g) the opportunities that may be given to suppliers to

correct unintentional errors of form between the opening

of tenders and the awarding of the contract shall not be

permitted to give rise to any discriminatory practice.

In this paragraph, "means of electronic transmission" consists of

means capable of producing for the recipient at the destination of

the transmission a printed copy of the tender.

2. An entity may not penalize a supplier whose tender is received

in the office designated in the tender documentation after the time

specified for receiving tenders if the delay is due solely to

mishandling on the part of the entity. An entity may also consider,

in exceptional circumstances, tenders received after the time

specified for receiving tenders if the entity's procedures so

provide.

3. All tenders solicited by an entity under open or selective

procedures shall be received and opened under procedures and

conditions guaranteeing the regularity of the openings. The entity

shall retain the information on the opening of tenders and the

information shall remain at the disposal of the competent

authorities of the respective Party so that it may be used if

required under the procedures of Article 1017 (Bid Challenge),

Article 1019 (Provision of Information) or Chapter Twenty

(Institutional Arrangements and Dispute Settlement Procedures).

4. An entity shall award contracts in accordance with the

following:

(a) to be considered for award, a tender must, at the time of

opening, conform to the essential requirements of the

notices or tender documentation and have been submitted

by a supplier that complies with the conditions for

participation;

(b) if the entity has received a tender that is abnormally

lower in price than other tenders submitted, the entity

may enquire of the supplier to ensure that it can comply

with the conditions of participation and is or will be

capable of fulfilling the terms of the contract;

(c) unless the entity decides in the public interest not to

award the contract, the entity shall make the award to

the supplier that has been determined to be fully capable

of undertaking the contract and whose tender is either

the lowest tender or the tender that in terms of the

specific evaluation criteria set forth in the notices or

tender documentation is determined to be the most

advantageous;

(d) awards shall be made in accordance with the criteria and

essential requirements specified in the tender

documentation; and

(e) option clauses shall not be used in a manner that

circumvents the provisions of this Chapter.

5. No entity of a Party shall make it a condition of the awarding

of a contract that the supplier has previously been awarded one or

more contracts by an entity of that Party, or that the supplier has

prior work experience within the territory of that Party.

6. An entity shall:

(a) upon request, promptly inform suppliers participating in

tendering procedures of decisions on contract awards and,

if so requested, inform them in writing; and

(b) upon request of a supplier whose tender was not selected

for award, provide pertinent information to that supplier

concerning the reasons for not selecting its tender and

the characteristics and relevant advantages of the tender

selected, as well as the name of the winning supplier.

7. An entity shall publish a notice in the appropriate

publication listed in Annex 1010.1 (Publications) no later than 72

days after the award of a contract, which notice shall contain the

following information:

(a) a description of the nature and quantity of goods or

services included in the contract;

(b) the name and address of the entity awarding the contract;

(c) the date of the award;

(d) the name and address of each winning supplier;

(e) the value of the contract, or the highest and lowest

tenders considered in the process of awarding the

contract; and

(f) the tendering procedure used.

8. Notwithstanding any other provision of this Article, an entity

may withhold certain information on the award of a contract, where

disclosure of such information would impede law enforcement or

otherwise be contrary to the public interest or would prejudice the

legitimate commercial interest of a particular person, or might

prejudice fair competition between suppliers.

Article 1016: Limited Tendering

1. An entity of a Party may, in the circumstances and subject to

the conditions specified in paragraph 2, deviate from the

provisions of Articles 1008 (Tendering Procedures) through 1015

(Submission, Receipt and Opening of Tenders and Awarding of

Contracts), provided that such limited tendering is not used with

a view to avoiding maximum possible competition or in a manner that

would constitute a means of discrimination between suppliers of the

other Parties or protection of domestic suppliers.

2. An entity may use limited tendering in the following

circumstances and subject to the following conditions, as

applicable:

(a) in the absence of tenders in response to an open or

selective tender, or when the tenders submitted either

have resulted from collusion or do not conform to the

essential requirements of the tender documentation, or

when the tenders submitted come from suppliers who do not

comply with the conditions for participation provided for

in accordance with this Chapter, on condition that the

requirements of the initial procurement are not

substantially modified in the contract as awarded;

(b) when, for works of art or for reasons connected with the

protection of patents, copyrights or other exclusive

rights, proprietary information, confidential consulting

services or, when there is an absence of competition for

technical reasons, the goods or services can be supplied

only by a particular supplier and no reasonable

alternative or substitute exists;

(c) in so far as is strictly necessary when, for reasons of

extreme urgency brought about by events unforeseeable by

the entity, the goods or services could not be obtained

in time by means of open or selective tendering

procedures;

(d) for additional deliveries by the original supplier that

are intended either as replacement parts or continuing

services for existing supplies, services or

installations, or as the extension of existing supplies,

services or installations, when a change of supplier

would compel the entity to procure equipment or services

not meeting requirements of interchangeability with

already existing equipment or services, including

software to the extent that the initial procurement of

the software was covered by this Chapter;

(e) when an 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. When such

contracts have been fulfilled, subsequent procurements of

goods or services shall be subject to Articles 1008

(Tendering Procedures) through 1015 (Submission, Receipt

and Opening of Tenders and Awarding of Contracts).

Original development of a first good may include limited

production in order to incorporate the results of field

testing and to demonstrate that the good is suitable for

production in quantity to acceptable quality standards.

It does not extend to quantity production to establish

commercial viability or to recover research and

development costs;

(f) for goods purchased on a commodity market;

(g) for purchases made under exceptionally advantageous

conditions that only arise in the very short term. This

provision is intended to cover unusual disposals by firms

which are not normally suppliers; or disposal of assets

of businesses in liquidation or receivership. It is not

intended to cover routine purchases from regular

suppliers; and

(h) for a contract awarded to the winner of an architectural

design contest, on condition that the contest

(i) has been organized in a manner that is consistent

with the principles of this Chapter, notably as

regards the publication, in the sense of Article

1010 (Invitation to Participate), of an invitation

to suitably qualified suppliers to participate in

the contest,

(ii) has been organized with a view to awarding the

design contract to the winner, and

(iii) is to be judged by an independent jury.

3. An entity shall prepare a report in writing on each contract

awarded by it under the provisions of paragraph 2. Each report

shall contain the name of the procuring entity, indicate the value

and kind of goods or services procured, the name of the country of

origin, and a statement indicating the circumstances and conditions

described in paragraph 2 that justified the use of limited

tendering. Each report shall remain with the entity concerned at

the disposal of the competent authorities of the respective Party,

so that it may be used if required under the procedures of Article

1017 (Bid Challenge), Article 1019 (Provision of Information) or

Chapter 20 (Institutional Arrangements and Dispute Settlement Procedures).

Article 1017: Bid Challenge

1. In order to promote fair, open and impartial procurement

procedures, each Party shall adopt and maintain bid challenge

procedures for procurements covered by this Chapter in accordance

with the following:

(a) each Party shall allow suppliers of any good or service

of another Party to submit bid challenges concerning any

aspect of the procurement process, which for purposes of

this Article begins after an entity has decided on its

procurement requirement, leading up to and including the

contract award;

(b) a Party may encourage a supplier to seek a resolution of

any complaint with the entity concerned prior to

initiating a bid challenge;

(c) each Party shall ensure that its entities accord fair and

timely consideration to any complaint regarding

procurement covered by this Chapter;

(d) whether or not a supplier has attempted to resolve its

complaint with the entity, or upon an unsuccessful

attempt at such a resolution, no Party shall prevent the

supplier from initiating a bid challenge or seeking any

other relief available to such supplier;

(e) a Party may require a supplier to notify the entity upon

initiation of a bid challenge;