Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/nafta/10pro_a.asc

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                                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;