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FTAA - Free Trade Area of the Americas Draft Agreement Chapter XVIII Government Procurement CHAPTER XVIII Government Procurement1 * 1.1. For purposes of this Chapter: [build-operate-transfer contract and public works concession contract means any contractual arrangement the primary purpose of which is to provide for the construction or rehabilitation of physical infrastructure, plant, 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 the supplier, for a specified period of time, temporary ownership or a right to control and operate, and demand payment for the use of such works for the duration of the contract;] [international standard means a standard that is developed in a manner consistent with the decisions of the WTO Committee on Technical Barriers to Trade, as elaborated in "Decisions and Recommendations adopted by the Committee since 1 January 1995", G/TBT/1/Rev.8, 23 May 2002, Section IX "Decision of the Committee on Principles for the Development of International Standards, Guides and Recommendations with relation to Articles 2, 5 and Annex 3 of the Agreement");] [in writing or written means any worded or numbered expression that can be read, reproduced and later communicated, and includes electronically transmitted and stored information;] [measure means any law, regulation, procedure, requirement, administrative guidance or practice;] [offsets means any conditions or undertakings that encourage local development or improve a Party's balance-of-payments accounts, such as the use of domestic content, domestic suppliers, the licensing of technology, technology transfer, investment [requirements], counter-trade and similar actions;] [person means a natural or juridical person;] procurement means [contractual transactions to acquire property or services for the direct benefit or use of the government. The procurement process is the process that begins after an entity has decided on its requirement and continues through to and including contract award. It does not include procurements made with a view to commercial resale or made by one entity of a Party from another entity of that Party;] [any type of procurement of goods, services, or a combination thereof, including works carried out by public entities of the Parties for public purposes and not with a view to commercial resale or with a view to use in the production of goods or the supply of services for commercial sale, unless otherwise specified. [It includes procurement by such methods as purchase or lease, or rental or hire purchase, with or without an option to buy;]] [procuring entity means an entity listed in Annexes XX (no text);] [publish means to disseminate information in an electronic or paper medium that is distributed widely and is readily accessible to the general public;] [services includes construction services [or public works], unless otherwise specified;] [supplier * means a person that provides or could provide goods or services to a procuring entity;] and[technical specification means a tendering requirement that:
[2.1. The objective of this Chapter is to expand access to the government procurement markets of the FTAA Parties.] [2.1. The objectives of this Chapter are to recognize the importance of conducting government procurement in accordance with the fundamental principles of openness, transparency, and due process; and to strive to provide comprehensive coverage of procurement markets by eliminating market access barriers to the supply of goods and services, including construction services.]] Article 3. Scope of Application 3.1. This Chapter applies to:
[3.2. [For purposes of this Chapter, procurement does not include] [This Chapter does not apply to]:
[Article 4. General Principles 4.1. Each Party shall [guarantee] [recognize]:
Article 5.[National Treatment and Most Favored Nation Treatment] [Non-Discrimination] [5.1. With respect to any measure [and any procurement] covered by this Chapter, [and subject to the exception provided for in Article 27 (Exceptions),] [transitions and reservations included in the same,] each Party [and each procuring entity] shall accord [immediately and unconditionally] to the goods [and services] of any other Party and to the suppliers of any other Party [offering the goods or services of any other Party,] treatment no less favorable than the treatment the Party [or the procuring entity] accords to:
[5.2. With respect to any measure and any procurement covered by this Chapter, a [Party] [procuring entity] may not:
5.3. This Article 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,] or other import regulations or formalities, and measures
affecting [foreign] trade [in services] other than measures regarding procurement covered by this Chapter.
[Article 6. Treatment of the Differences in the Level of Development and Size of Economies] [6.1. The principle of differential treatment set forth in this Article 4 (General Principles) covering this Chapter may be reflected in the following aspects:
[6.2. Parties shall, in the application and administration of this Agreement, through the provisions set out in this Article, duly take into account the development, financial and trade needs of developing Parties and smaller economies, in their need to:
[6.3. [Smaller economies] [Parties, according to their level of development, especially the smaller economies] retain the right to utilize all procurement methods (i.e. open tendering, selective tendering and limited tendering), provided that such methods are utilized in a transparent manner.] [6.4. Developed Parties shall guarantee, for the benefit of Parties with smaller economies, a procurement quota equal to (…) of the total value of the contracts to be awarded.] [6.5. Smaller and/or developing economies may at any time, consistent with demonstrated need, and as agreed with the Committee on Government Procurement, institute emergency safeguards when compliance with commitments under this Chapter cause or threaten to cause damage to national suppliers and sensitive economic or socio-economic sectors. These measures shall be temporary in application subject to the duration of the period of emergency and limited to:
7.1. With regard to procurement covered by this Chapter, a [procuring entity] [Party] may not seek, take account of, impose [or enforce] offsets in the qualification and selection of suppliers, goods or services, in the evaluation of tenders or in the award of contracts, prior to or in the course of a procurement process. [7.2. Notwithstanding the provisions of paragraph 7.1 considering the levels of development and size of the economies, smaller economies and developing Parties may apply offsets in accordance with Annex XX (containing schedules of Market Access commitments - no text).] [Developing Parties may negotiate offsets through an indication in the specifications for bidding in the public procurement of goods, services or public works.][8.1. For purposes of procurement covered by this Chapter, no Party may apply rules of origin to goods imported from any other Party that are different from the rules of origin the Party applies in the normal course of trade [to imports of the same goods from the same Party].] [8.1. For the purposes of Article 5 ([National Treatment and Most Favored Nation Treatment] [Non-Discrimination]), determination of the origin of goods shall be made on a non-preferential basis.] [8.1. For purposes of the present Chapter, goods shall be considered originating goods of the Parties where they qualify as such in accordance with the pertinent provisions in the Chapter XX (Market Access for Goods) of the FTAA Agreement.]] [9.1. A Party may deny the benefits [granted by] [of] this Chapter to a service supplier of another Party, following notification [and consultation,] [during the period included between the presentation of tenders and the awarding of the contract,] when the Party determines that the service is being provided by an enterprise that:
[9.2. A Party may deny to an enterprise of another Party the benefits of this Chapter if nationals of a non-Party own or control the enterprise and the denying Party:
Article 10. Dissemination of Laws and Regulations 10.1. Each Party: [Article 11.[Government Procurement Procedures][General Principles] [11.1. The Parties shall ensure that their procuring entities use the procurement modalities and procedures established in their national laws, provided that these are in accordance with the provisions [of the principles] [defined] in this Chapter.] 5 [11.1. Each Party shall ensure that its procuring entities [listed in its Appendices] comply with the provisions of this Chapter in conducting procurement covered by this Chapter.] 11.2. In order to guarantee free competition and transparency and allow for the participation of tenderers from any of the Parties, the entities shall abstain from applying procedures in a discriminatory manner, such as setting time limits, requiring technical specifications, or any other requirement, the aim of which is to limit or exclude competition, and shall afford all suppliers equal access to information on a procurement. [11.3. For the purposes of this Chapter, government procurements instituted pursuant to Article 3 (Scope of Application) shall be conducted through open [or limited] tendering procedures, in accordance with the rules established herein.] [11.3. Procuring entities shall conduct procurement covered by this Chapter in a manner that is consistent with the provisions set out in Article 3 (Scope of Application), and, except where specifically provided otherwise in this Chapter, in a transparent manner, using methods such as open tendering, selective tendering and limited tendering.]] [Article 12. Valuation of Procurement 12.1. In estimating the value of a procurement for the purpose of ascertaining whether that procurement is covered by this Chapter, a procuring entity:
[12.2. In the case of procurement by lease or rental, or procurement that does not specify a total price, the basis for estimating the value of the procurement shall be, with respect to:
[Article 13. Selective Tendering 13.1. In order to ensure optimum and effective international competition in selective tenderings, entities shall invite to participate, for each procurement, the greatest possible number of domestic suppliers and suppliers from other Parties as are compatible with the efficient working of the procurement system. The entities shall select, in a fair and non-discriminatory manner, the suppliers who may participate in the tendering. 13.2. Entities that keep permanent lists of qualified suppliers may select those suppliers that will be invited to participate from among those included in such lists. Every selection must afford equal opportunities to the suppliers included in the lists. 13.3. Suppliers who apply to participate in a specific procurement shall be permitted to present offers and will be taken into account with the proviso that those who have not yet been qualified, be afforded sufficient time to complete the qualification procedure as provided for in the Article 20 (Qualification of Suppliers). The number of additional suppliers authorized to participate shall be limited only for reasons related to the efficient functioning of the procurement operation. 13.4. Applications to participate in selective tenderings may be submitted by telex, telegram or fax. 13.5. Where an entity of a
Party does not invite or accept a supplier to tender, at the request of
the supplier, the entity shall provide without delay any pertinent
information on the reasons for its action.]
[14.1. [A] [P][p]rocuring
entit[y][ies] may use limited tendering procedures in the [following]
circumstances [, provided that it does not use such
procedures for the purpose of avoiding competition among suppliers or
protection of domestic suppliers:] [provided for in their
respective domestic laws:. In any case, entities shall not use limited
tendering procedures for the purpose of avoiding the obligations of this
Chapter.]]
[a) [in
the absence of tenders in response to a bidding process;] [in
the absence of tenders or when the tenders presented do not meet the
requirements or conditions for participation, or are risky or run
counter to public interest after two public sessions have been held
and they have been declared void. In such cases, requirements
identical to those of the original tender document shall be
applied;]]
[a) in the
absence of tenders in response to a notice of solicitation, or where
no tenders that comply with the requirements in the tender
documentation were submitted in response to a prior notice of
solicitation, provided that the tender requirements for the
procurement are [not substantially modified] [essentially the
same];]
[b) where no
suppliers satisfied the conditions of participation, provided that
the tender requirements for the procurement are [not substantially
modified] [essentially the same];]
[c) when, for
works of art, [the acquisition or lease of tangible goods,
intangible goods or services], or for reasons connected with the
protection of exclusive rights, [such as patents, copyrights or
[proprietary] [restricted] information] or where there is an absence
of competition for technical reasons, the goods or services can be
supplied only by a single supplier and no reasonable
alternative or substitute exists;]
[d) in so far
as is strictly necessary, where for reasons of [emergency] [extreme
urgency] brought about by events unforeseeable [or inevitable] by
the procuring entity, the goods or services could not be
obtained in time by means of open [or selective] [procurement]
[tendering] [procedures] [and the use of such procedures would
result in serious injury to the entity, the entity’s program
responsibilities, or the responsible Party [procuring entities shall
not use this provision because of a lack of advance planning;]]]
[e) for
additional [deliveries] [contracts] by the original supplier that
are intended either as replacement parts, extensions, or continuing
services for existing equipment, software, services or
installations, where a change of supplier would compel the entity to
procure products or services not meeting requirements of
interchangeability with existing equipment, software, services, or
installations;]
[f) for the
acquisition of components or parts of domestic or foreign origin
needed for the maintenance of equipment during the technical
guarantee period, when such exclusive status is indispensable for
the guarantee to have effect;]
[g) when an
entity procures a prototype or a first good or service developed [or
provided] 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, the purchase of goods or
services made as a result thereof shall be adapted to open
procurement procedures];]
[h) in
contracts with a professional or entity considered, within the
particular field, to have recognized expertise, demonstrated by
prior performance, studies, experiences, publications, organization,
equipment, technical staff, or other requirements related to their
activities, it can be inferred that its work is essential and the
most appropriate for fully meeting the objective of the contract;]
[i) where an
entity needs to procure consulting services regarding matters of a
confidential nature, the disclosure of which could [reasonably be
expected to] compromise government confidentiality, cause serious
economic disruption or similarly be contrary to the public
interest;]
[j) for
purchases [of goods] made under exceptionally advantageous
conditions that only arise in the very short term,[[such as] [in the
case of] unusual disposals by enterprises that are not normally
suppliers or disposal of assets of businesses in liquidation or
receivership,] but not routine purchases from regular suppliers;]
[k) for a
contract to be awarded to the winner of an architectural design
contest, on condition that the contest is: i) organized in
a manner consistent with the principles of this Chapter,
including regarding publication of an invitation to suitably
qualified suppliers to participate in the contest;
[l) where the
amount of the procurement is negligible or below the minimum for
limited tendering established by the Parties under their respective
laws or regulations;]
[m) for goods
purchased on a commodity market;] and
[n) in cases
where a Party’s legislation provides for contracting, by means of
limited tendering, entities reporting to, or controlled by, the
government, and non-profit institutions for social assistance,
education, research, or institutional development, and for
procurements using the resources of such institutions, provided they
are for exclusive use in scientific and technological research.]
[14.2. Entities shall not use limited tendering procedures for the purpose
of avoiding the obligations of this Chapter. Notwithstanding any of the
provisions of this Article, entities shall not use limited tendering
because of a lack of advance planning or concerns relating to the amount
of funds available to an entity within a particular period of time.]
[14.3. Where an entity uses a limited tendering procedure, it may choose
not to publish or distribute a notice of intended procurement prior to the
award of the procurement contract.]
[14.4. Each procuring entity shall prepare a report in writing on each
contract awarded under paragraph 14.1 of this Article. Each such report
shall include the name of the entity, the value and kind of goods and
services procured and a statement indicating the circumstances described
in paragraph 14.1 of this Article that justified the use of such
procedures. Procuring entities shall retain this report for a minimum of
three (3) years.]]
[Article 15. Negotiation Disciplines
[15.1. Domestic law permitting, a procuring entity may conduct
negotiations, providing that it has been expressly stipulated in the
tender documentation.]
[15.1. Domestic law permitting, [and if so provided in the tender
documentation,] an entity may conduct negotiations only:
a) [in the
event similar tenders are submitted, negotiations may be entered
into with those tenderers that pre-qualify for the purpose, in order
to secure better technical, quality or price terms and provided that
the object of the tender document is not altered. The negotiation
may be conducted through joint or individual sessions with each
tenderer, but in either event, the conclusion of the negotiation and
final submission of the improvements shall be done in a session to
which all tenderers with similar tenders are convoked. A summary
record shall be kept of the proceedings in each session;]
b) in the
context of a procurement in which the entity has, in the tender
notice published in accordance with Article 16 (Publication of
Notice of Solicitation) and Article 18 (Content of Tender
Documentation) indicated its intent to negotiate; or
c) when it
appears to the entity from the evaluation of tenders that no one
tender is clearly the most advantageous in terms of the specific
evaluation criteria set out in the tender documentation.]
[15.2. An entity shall use negotiations primarily to identify the
advantages and disadvantages of the tenders.]
[15.3. No entity may, in the course of negotiations, discriminate between
the suppliers of goods or services. In particular, an entity shall:
a) carry out
any elimination of suppliers of goods or services in accordance with
the criteria set out in the tender documentation;
b) provide in
writing all modifications to the criteria or technical requirements
to all suppliers remaining in the negotiations;
c) permit all
remaining suppliers of goods or services to submit new or amended
tenders on the basis of the modified criteria or requirements; and
d) when
negotiations are concluded, permit all remaining suppliers of goods
or services to submit final tenders on a common deadline.]
[15.4. The negotiation disciplines shall be applied in those procedures in
which price is the determining element in the award.]
[15.5. Tenders whose prices are not more than five percent (5%) higher
than the lowest tender shall be considered similar tenders.] [15.6. Negotiations may be
established to improve tenders in cases of manifestly objectionable
prices.]
[15.7. The rules for
improving tenders and for the negotiations stipulated above shall be used
by the State entities when they deem it suitable to their interests.]]
[Article 16. Publication of Notice of
Solicitation*
16.1. For each procurement covered by this Chapter, except as provided in
Article 14 (Limited Tendering), [each Party shall ensure that its]
procuring entities shall publish a notice of solicitation in the
[appropriate] [official] print or electronic media, listed in Annex XX
(no text). Such media shall be widely disseminated and [remain]
accessible to the public.
16.2. The notice of solicitation shall contain the information necessary
for suppliers to be able to evaluate their interest in participating in
the procurement, including, at a minimum:
a) the name and
address of the procuring entity and other information for contacting
the entity and obtaining all relevant documents relating to the
procurement [and their cost];
b) the
procurement method that will be used [and whether it will involve
negotiation];
c) a
description of the intended procurement, including the nature and
quantity of the goods or services to be procured, [the location of
the public works or where the services will be provided,] [options,]
[and conditions for participation];
[d) the
approximate value of the contract and form of payment of the
intended procurement;]
[e) the
language or languages in which the tender may be submitted; the
medium in which tenders may be submitted, e.g. paper or electronic
(e-mail, fax, mail, etc.);]
f) the place,
date and time period for the submission [and opening of tenders];
and
g) an
indication that the procurement is covered by this Chapter.
[16.3. Each Party will endeavor to develop an electronic information
system that would provide access to such notices.]
[16.4. After the notice of solicitation has been published, any change to
the tender document shall require the publication of a new notice with the
same publication requirements as before, and resetting the starting time
for the regulatory terms, except when it is absolutely clear that the
change does not affect the formulation of proposals.]]
Time Periods for responses [to inviting tenders] [to invitations to participate]
[17.1. The Parties shall guarantee that the prescribed time periods
for the tendering process shall be adequate to allow participating
suppliers of all Parties to prepare and submit responsive tenders.]
[17.1. [[Any] [17.2. If, as a result of
a need to amend information provided to suppliers during the procurement
process, a procuring entity must extend the time period, such entity shall
permit all participating suppliers to submit final tenders in accordance
with a common deadline.]
[17.3. For submitting an invitation to tender the time periods are:
[a) a procuring
entity using open tendering procedures shall provide no less than
[forty (40)] [thirty (30)] calendar days between the date on which a
notice of invitation to tender is published and the date [on which
the tendering procedures relating to that notice are closed]
[for delivery of proposals]. [In the case of electronic tendering
when the object of the procurement so allows, a shorter time period,
no less than (…) may be stipulated;]]
[a) The
prescribed time periods for the tendering process shall be adequate
to allow participating suppliers of all Parties to prepare and
submit responsive tenders. For open tendering procedures, the notice
shall be published no fewer than (forty) (40) consecutive days
before the final deadline for submitting tenders;]
[b) For
electronic tendering procedures, the period is at least fifteen (15)
consecutive days for goods and services and at least forty (40)
consecutive days for public works;] and
[c) procuring
entities using selective tendering procedures shall provide no less
than [forty (40)] [fifteen (15)] calendar days between the date on
which a notice of invitation to tender is distributed to
participating suppliers and the date [on which the tendering
procedures relating to that notice is closed] [for delivery
of proposals].]]
[17.4. These time periods shall be calculated from the earlier of the date
of [last] publication of the notice of tender or the date on which the
tender documentation actually becomes available, whichever occurs last.]
Shorter Time Periods
[17.5. Under the following circumstances, procuring entities may establish
a time period for tendering that is shorter than forty (40) days provided
that such time period is sufficiently long to enable suppliers to prepare
and submit responsive tenders and is in no case less than ten (10)
calendar days prior to the final date for the submission of tenders:]
[a) if a
separate notice has been published at least forty (40) calendar days
and not more than twelve (12) months in advance, [and the notice
contains: a description of the subject matter of the procurement;
the time limits for the submission of tenders or, when appropriate,
applications for qualification; and the address from which documents
relating to the procurement may be requested] [the period of
forty (40) days may be reduced to no less than twenty four (24)
calendar days];]
[b) in the case
of the second or subsequent publications dealing with contracts of a
recurring nature [, the period of forty (40) days for reception of
bids may be reduced to not less than twenty four (24) calendar
days];]
[c) in the case
of procurement of commercial goods and services that are sold or
offered for sale to, and customarily purchased and used by,
non-governmental buyers for non-governmental purposes, except that a
procuring entity shall not reduce time periods for this reason if
the entity requires that potential suppliers be qualified for
participation in the procurement before submitting tenders, in
accordance with Article 13 (Selective Tendering) and Article 20
(Qualification of Suppliers); and]
[d) when, for
duly substantiated reasons of extreme urgency brought about by
events unforeseeable by the entity, the use of a forty (40) day time
period would result in serious injury to the entity or the relevant
Party.]
[17.6. When a procuring
entity publishes an advance notice of intended procurement in accordance
with Article 16 (Publication of Notice of Solicitation) of this Chapter in
an electronic media listed in Annex XX (no text) to this Chapter,
the entity may reduce the time periods provided for in this Chapter by up
to five calendar days. The use of this provision, however, shall in no
case result in the reduction of those time periods to less than ten (10)
calendar days from the date on which the notice of intended procurement is
published.]
[17.7. Notwithstanding any other time periods in this Article, when a
procuring entity is purchasing commercial goods and services and the
notice of intended procurement and the tender documents are published
electronically, and the tenders may be received electronically, the entity
may reduce the time-period to no less than (…)
days, provided such time is adequate to allow suppliers to submit
responsive electronic tenders.]]
[Article 18. Content of the Tender Documentation]
[18.1. The Procuring entities shall provide interested suppliers
with tender documentation that includes all information necessary to
permit such suppliers to prepare and submit responsive bids. [Such
documentation shall be prepared in accordance with the domestic laws of
the Party calling for bids.][Such documentation shall include in precise
terms, at least the following information:]
a) name and
address of the procuring entity, including the date, time and place
for the submission and opening of the tenders, as well as the
requests for additional information;
b) the
tendering procedure or modality;
c) the language
or languages in which tenders and tendering documents should be
submitted;
d) the tender
validity period, after which tenderers shall be freed from the
commitments they assumed;
e) the purpose
of the intended procurement, including the nature and quantity of
the goods or services to be procured or the works to be executed and
any requirements to be fulfilled, including any technical
specifications, conformity certification, plans, drawings or any
required instructions;
f) the
conditions required of suppliers for participation in the
procurement, including:
i) bonds;
g) all criteria
to be considered in the evaluation of tenders and the awarding of
the contract, including any factors, other than price, that are to
be considered in the evaluation of tenders, and if applicable, a
clear explanation of the formula for weighing the factors used to
select tenders, as well as the currency for submitting tenders and
payment;
h) the terms of
payment, and any other terms or conditions;
i) reference to
the possibility of negotiation;
j) date set to
begin and conclude delivery of the goods or works or provision of
services;
k) an
indication that the procurement is covered by this Chapter;
l) the origin
of the funds that will finance the procurement;
m) the laws
governing the procurement and challenge procedures; and
n) annexes
containing:
i) basic and/or
executive project;
[18.2. In establishing any delivery date for the good or service being
procured, a procuring entity shall take into account such factors as the
complexity of the procurement, the extent of subcontracting anticipated
and the realistic time required for production, de-stocking and transport
of goods from the points of supply or for supply of services.]
Article 19. Application of Technical Specifications
19.1. A procuring entity may not prepare, adopt or apply any technical
specification nor prescribe any conformity assessment procedure with the
purpose or the effect of creating unnecessary obstacles to trade between
the Parties.
[19.2. The technical specifications shall be created based on the use or
properties of use and employment of the good and the destination of the
service or public work and shall include objective requirements essential
for compliance with the objective of the procurement and shall avoid
deviation leading to poor practices.]
19.3. In prescribing the technical specifications for the good or service
being procured, a procuring entity shall [, where appropriate]:
a) specify the
technical specifications, [wherever appropriate,] in terms of
performance and functional requirements, rather than design, [method
of development] or descriptive characteristics; and
b) base the
technical specifications on international standards [when
applicable, or otherwise on national technical regulations on
recognized national standards or building codes] where such exist
[and are applicable to the procuring entity, except where the use of
an international standard would fail to meet the procuring entity’s
program requirements or would impose more burdens than the use of a
government-unique standard] [otherwise on recognized national
standards or building codes] [or in the national technical standards
of the country which the tender is located].
19.4. A procuring entity may not prescribe technical specifications that
require or refer to a particular trademark or trade name, patent,
copyright, design or type, specific origin, producer or supplier, unless
there is no other sufficiently precise or intelligible way of describing
the procurement requirements and provided that, in such cases, words such
as "or equivalent" are included in the tender documentation.
[19.5. The Parties shall ensure that its procuring entities shall not seek
or accept from any person or enterprise that may have a commercial
interest in the procurement, advice that may be used in the preparation or
adoption of any technical specification for a specific procurement, in a
manner that would have the effect of precluding or limiting competition.]
[19.6. 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.]
[19.7. Where, [during the course of a procurement,] [before the time set
for the receipt for the opening of tenders] a procuring entity modifies
the criteria or technical requirements set out in a notice or tender
documentation provided to participating suppliers, or amends or re-issues
a notice or tender documentation, it shall transmit all such modifications
or amended or re-issued notice or tender documentation in writing, giving
the same circulation as the original documents upon which the modification
or amendment or re-issued notice or tender documentation is based:
a) to all the
suppliers that are participating at the time the information is
amended, if known, and in all other cases, in the same manner as the
original information; and
b) in adequate
time to allow such suppliers to modify and re-submit amended
tenders, as appropriate.]
[Article 20. Qualification of Suppliers
20.1. Each Party shall ensure that:
a)
entities covered by this Chapter recognize as
qualified all suppliers that meet the requisite conditions of
participation;
b) when
evaluating the economic/financial and technical capacity of a
tenderer, all activities conducted in the territory of any Party or
in the territory of other Parties are recognized equally, and
entities ensure that technical qualifications are limited to the
areas of greatest importance and significant value of the
procurement;
c) the
qualification decisions are based solely on the conditions for
participation that have been specified in advance in the tender
documentation;
d) entities
covered by this Chapter do not impose the condition that, in
order for a supplier to participate in a procurement process, the
supplier has previously been awarded one or more contracts by
that Party or that the supplier has prior work experience in the
territory of that Party. There shall be no requirements of minimum
quantities of contracts or time periods in which they were executed.
Nevertheless, for purposes of technical qualification and where the
complexity of the service or the work so requires, proof may be
required of prior experience consistent with the characteristics and
quantity of the procurement, including with regard to facilities,
equipment, and technical personnel available to perform the
contract; and
e) entities
covered by this Chapter use a single qualification procedure that is
described in the tender documentation. Where an entity justifies the
need for a different procedure, it shall employ additional or
different qualification procedures, which must be described in
detail in the tender documentation. The Parties shall also endeavor
to keep to a minimum the differences between the qualification
procedures of its entities.
20.2. Tendering entities may require from tenderers a guarantee of the
bid, as well as a guarantee of performance from the successful tenderer.
20.3. Where a tenderer is rejected in a tendering procedure, the entity
shall provide the interested parties with the reasons for its actions.
20.4 Nothing in the
provisions set forth in the above paragraphs shall preclude an entity of a
Party from excluding a tenderer on grounds such as bankruptcy, false
declarations, or penalties that disqualify the tenderer from entering into
contracts with entities of the Parties.]
[Article 21. Registry of Suppliers
21.1. Each Party may establish a registry of suppliers of goods, services
and works.
21.2. Parties whose entities use lists or a register of suppliers of
goods, services and works shall ensure that:
a) goods or
service suppliers can apply for inscription, qualification or
entitlement at any time;
b) all goods or
service suppliers that so request are put on the register without
undue delay, provided they meet all the requirements;
c) where an
entity rejects an application for registration, it shall provide to
the interested party, without delay, the reasons for its decision;
d) all
suppliers of other Parties included in the registries are notified
of their suspension or removal therefrom; and
e) the purpose
thereof shall be none other than to verify their eligibility to
conduct business with the State, without raising impediments to
their inclusion in the list of any suppliers of any other Party.
21.3. Registration will occur at the request of interested parties, who
shall provide the required documentation. [Suppliers shall fulfill the
requirements by means of the same documentation.]]
Article 22. Submission, Receipt and Opening of Tenders 22.1. A procuring entity shall receive and open all tenders under procedures that [guarantee the
fairness and impartiality of the procurement process, that include] [are consistent with] the following:
a) tenders
shall be presented in writing;
b) a procuring
entity shall treat tenders in confidence [until the opening of
tenders, subject to the Article 25 ([Non-Disclosureof]
[Confidential] Information).] [In particular, it shall not provide
information to suppliers that might prejudice fair competition
between suppliers;] [c) a procuring entity shall open tenders in a
public session and shall enter the details in a record;]
d) [if the
delay in the receipt of the tender is solely the responsibility of
the procuring entity, the tenderer shall not be prejudiced by being
prevented from presenting the tender;] [A procuring entity shall not
[penalize] any supplier whose tender is received after the
expiration of the time specified for receiving tenders if the delay
is caused solely by the procuring entity;] [e) a procuring entity shall issue a record of
the receipt of the tender indicating the date, place, and time of
receipt;] and,
f) a procuring
entity may allow tenderers to correct errors of form, provided such
corrections do not alter the previously established competitive
conditions, and the entity provides the same opportunities to all
participating suppliers.
Article 23. Evaluation of Tenders and Award of Contracts
23.1. To be considered for award, a tender must, at the time of opening,
comply with the
23.2. [Unless a procuring entity determines that it is not in the public
interest to award a contract,] a procuring entity shall award each
contract to the tenderer:
a) that the
entity has determined to be fully capable of undertaking the
contract; and
b) whose tender
is
23.3. Where the procuring entity receives a tender that is abnormally
lower in price than the other tenders submitted, the entity may make the
necessary inquiries to ensure that the tenderer will be able to meet the
conditions for participation and will be capable of fulfilling the terms
of the contract. [Where the entity determines that the tenderer is
incapable of fulfilling the terms of the contract, the tender shall be
rejected.] [23.4. A procuring entity may render a tendering
procedure null and void for duly justified reasons of interest to the
Administration, or cancel it for reasons of irregularity or illegality.]
23.5. No entity of a Party may make it a condition of the awarding of a
contract that the [supplier] [tenderer] has previously been awarded one
(1) or more contracts by an entity of that Party, or that the [supplier] [tenderer]
has prior work experience in the territory of that Party. [23.6. A procuring entity shall not cancel a
procurement or modify awarded contracts in a manner that circumvents the
obligations of this Chapter.]
Article 24. Dissemination and Publication of Information on Contract Awards
24.1. The Parties shall ensure that their entities provide [effective]
dissemination of [the results of government procurement process] [the
awarding of the contract].
24.2. A procuring entity shall [promptly inform] [provide to] all
tenderers [of the entity’s contract award decisions] [information on the
procurement procedure]. Subject to Article 25 ([Non-Disclosure of]
[Confidential] Information), a procuring entity shall, on request,
[provide] [make available] to an unsuccessful tenderer, if so explicitly
requested, [an explanation of the reasons that the entity did not select
its tender and the relative advantages of the successful supplier’s
tender] [information on the procurement process].
[24.3. Not later than [seventy two (72)] days after the [award] [entry
into force] of each contract covered by this Chapter, a procuring entity
shall publish a notice in an officially designated publication listed in
Annex XX (no text) that may be in an electronic or printed media.
Where an electronic media is used, the information shall remain readily
accessible for [one hundred twenty (120) days] [a reasonable period of
time] from the date of publication. The notice shall include at least the
following information:
a) a
description of the goods or services procured;
b) the name and
address of the procuring entity;
c) the name and
address of the successful tenderer;
d) the value of
the successful tender [or the highest or lowest bids that were taken
into account to award the contract];
[e) the [date
of award] [term of the contract];]and
[f) type of
procurement method used [, and in cases where a [limited] tendering
procedure was used pursuant to Article 14 (Limited Tendering), a
description of the circumstances justifying the use of such
procedure].]
[24.4. On request of any other Party, a Party shall provide promptly such
information on the award of a contract, including information on the
characteristics and relative advantages of the successful tender and on
the contract price, as may be necessary to determine whether the
procurement was conducted fairly, impartially and in accordance with this
Chapter.]
Article 25.[Non-Disclosure of] [Confidential] Information
[25.1. No Party, procuring entity or review authority, referred to in
Article 26 ([[Review][Challenge] Procedures]) may disclose information
[that a person providing the information has] designated as confidential
[, without the authorization of such person].]
[25.1. Nothing in this Agreement shall prevent a Party or a procuring
entity from withholding the release of information under this Agreement
where release might:
a) impede law
enforcement;
[b) prejudice fair
competition between suppliers;]
[c) prejudice the
legitimate commercial interests of particular suppliers or procuring
entities, including the protection of intellectual property;] or
d) otherwise be contrary to the
public interest.]
[25.1. The Parties and their entities shall not disclose confidential
information in the course of a procurement. However, the Parties must
disclose this information where non-disclosure:
a) impedes law
enforcement; or b) is contrary
to the public interest.]
Article 26. [[Review] [Challenge] Procedures]
[26.1. Each Party shall
guarantee access for [suppliers] [tenderers] to review procedures that
allow them to submit challenges relating to the [entity of] the Party’s
measures relative to the application of this Chapter [in connection with
procurement covered by this Chapter,] without prejudice to the
[supplier’s] [tenderer’s] participation in ongoing or future procurement
activities. [To this end, each Party shall establish or designate [at
least one] impartial administrative [or judicial] authority that is
independent from its procuring entities to receive and review such
challenges.]]
[26.2. Each Party shall encourage suppliers to seek resolution of
complaints with the procuring entity prior to initiating a challenge.
Procuring entities shall accord impartial and timely consideration to any
such complaint.]
26.3. Each Party shall ensure that its review procedures are made
generally available [in writing] and are consistent with due process
principles.
[26.4. Where a body other than an authority referred to in paragraph 26.1
initially reviews a challenge, the Party shall ensure that the [supplier]
[tenderer] may appeal the initial decision to an impartial administrative
or judicial authority that is independent of the procuring entity that is
the subject of the challenge.]
[26.5. Each Party shall authorize the authority [or authorities] that it
establishes or designates under paragraph 26.1 to take prompt interim
measures, pending the resolution of a challenge, to preserve the
[supplier’s] [tenderer’s] opportunity to participate in the procurement
and to ensure that the Party complies with the application of this
Chapter, [including by][except in cases of urgency or where the delay
would be contrary to the public interest, these interim measures may
include] suspending the contract award or the performance of a contract
that has already been awarded.]
[26.6. [Each Party shall ensure that its review procedures are conducted
in accordance with] [Without prejudice to other review procedures provided
or developed by each of the Parties, each Party shall guarantee that the
established authorities or who are designated in conformity with paragraph
26.1; have at least] the following:
a) a [supplier]
[tenderer] shall be allowed sufficient time [,which in no case shall
be less than ten (10) days from the time when the basis of the
complaint became known or reasonably should have become known to the
[supplier] [tenderer],] to prepare and submit, a challenge in
writing, at any stage of the procurement process;
b) a procuring
entity shall respond in writing to a [supplier’s] [tenderer’s]
complaint and provide all relevant documents to the review
authority;
[c the review
authority may not make a decision related to a challenge without
providing the [supplier] [tenderer] [and any other interested party]
with an opportunity to present its case;]
d) the
authority shall provide decisions relating to a supplier’s challenge
in a timely fashion, in writing, with an explanation of the basis
for each decision; and
e) no [supplier] [tenderer] [interested party] shall be prevented from
registering appeals with other appellate bodies.]
Article 27. Exceptions
6
27.1. Provided that such measures are 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
trade between the Parties, nothing in this Chapter shall be construed to
prevent any Party from adopting or maintaining measures:
a) necessary to
protect public morals, order or safety;
b) necessary to
protect human, animal or plant life or health;
[c) necessary
to protect intellectual property; or] [d) relating to
goods or services of handicapped persons, of philanthropic
institutions or of prison labor.]
[27.2. The Parties understand that paragraph 27.1.b) includes
environmental measures necessary to protect human, animal or plant life or
health.] [27.3. Nothing in this
Chapter shall be construed to prevent a Party from taking any action or
not disclosing any information which it considers necessary for the
protection of its essential interests in matters of security relating to
the procurement of arms, ammunition or war materials, or to procurement
indispensable for national security or for national defense purposes.]
[27.4. Nothing in this Chapter shall be construed to prevent any Party
from adopting or maintaining measures linked to national defense, national
security, public order, emergencies situations, urgency situations and
other matters involving the protection of health and the environment] [as
agreed to in Annex XX (no text), pertaining to exceptions].
[27.5. This Chapter does not bind Parties currently participating or that
will be participating in deeper integration agreements to extend, to the
Parties to this Agreement, rights and obligations stemming from the
application of the Most Favored Nation and National Treatment clauses in
said integration Agreements.]
[27.6. The limitations of national treatment and market access as
established in the schedules of specific commitments in Chapter XX
(Services) of this Agreement shall be applied in a complementary manner.
Upon supplying public works services covered by this Chapter, the
disciplines established in Chapter XX (Services) of this Agreement and in
the list of specific commitments shall be observed.]
[Article 28. Ensuring Integrity in Procurement Practices
28.1. Each Party shall adopt the necessary legislative or other measures
to establish that it is a criminal offense under its domestic law for:
a) a
procurement official of that Party or a person who performs
procurement functions for that Party to solicit or accept, directly
or indirectly, any article of monetary value or other benefit, for
himself or for another person or entity, in exchange for any act or
omission in the performance of his or her procurement functions;
b) any person
to offer or grant, directly or indirectly, to a procurement official
of that Party or a person who performs procurement functions for
that Party, any article of monetary value or other benefit, for
himself or for another person or entity, in exchange for any act or
omission in the performance of his or her procurement functions; and
c) any person
intentionally to offer, promise or give any undue pecuniary or other
advantage, whether directly or through intermediaries, to a foreign
procurement official, for that official or for a third party, in
order that the official act or refrain from acting in relation to
the performance of procurement duties, in order to obtain or retain
business or other improper advantage.
28.2. Each Party shall establish and maintain systems to declare
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 procurement. On the request of another Party, a Party shall
identify the suppliers determined to be ineligible under these systems,
and, where appropriate, exchange information regarding those suppliers or
the fraudulent or illegal action.]
[Article 29. Amendments, Modifications and Privatization
Amendments and Modifications
29.1. A Party may modify its coverage [under] this Chapter provided that
it:
a) notifies the
other Parties in writing [and no other Party objects in writing
within [thirty (30)] days of the notification]; and
b) offers
within [thirty (30)] days acceptable compensatory adjustments to the
other Parties to maintain a level of coverage comparable to that
existing prior to the modification, where necessary, except as
provided in paragraphs 29.2 and 29.3.
29.2. A Party may make rectifications of a purely formal nature to its
coverage under this Chapter, [or minor amendments] to its Annexes,
provided that it notifies the other Parties in writing [and no other Party
objects in writing within thirty (30) days of the notification.] A Party
that makes such a rectification [or minor amendment] need not provide
compensatory adjustments.
[29.3. A Party need not provide compensatory adjustments in those
circumstances where the Parties agree that the proposed modification
covers a procuring entity over which a Party has effectively eliminated
its control [or begins to operate in deregulated competitive markets] [or
influence]. [Where the Parties do not agree that such government control
or influence has been effectively eliminated, the objecting Party or
Parties may request further information or consultations with a view to
clarifying the nature of any government control or influence and reaching
agreement on the procuring entity’s status under this Chapter.]] [29.3. No provision in
this Chapter shall be interpreted as meaning that a Party is prohibited
from [privatizing an entity covered in this Chapter] [[or]
withdrawing an entity covered by this Chapter if such control is removed
from the State or if the State’s loses its effective control over the
entity]. [In these cases, [another] a Party may [not] demand
compensation of any kind.]]
[29.4. Where the Parties are in agreement on the proposed modification,
rectification or minor amendment, the [Parties] shall modify the relevant
Annex to reflect such agreement.]
[29.5. No Party may withdraw entities covered by this Chapter with the
intention of avoiding compliance with the obligations herein
contemplated].
Privatization
[29.6. Privatized entities shall not be subject to the application of this
Chapter.]
[29.7. Where a Party considers that government control or influence over
an entity listed in its Schedules to Annexes to this Chapter has been
effectively eliminated, the Party may propose the removal of that entity
from the relevant schedule by notifying the other Parties. Where no Party
objects in writing to the removal of the entity within (…) days of the
notification, the entity shall be immediately removed from the coverage of
this Chapter.]
[29.8. Where any Party objects to the removal on the grounds that
government control or influence has not been effectively eliminated, the
objecting Party may request further information. Such requests for
information shall be made in writing within (…) days of the objection.]
[29.9. Where the information provided does not result in the resolution of
the issue; the objecting Party may seek consultations for the purpose of
maintaining the balance of negotiated market access opportunities under
this Chapter. Any such requests for consultations shall be made in writing
within (…) days of the information being provided where
a) , in the
course of such consultations, compensation is requested, allowance
shall be made for the market access opportunities resulting from the
removal of government control or influence from the entity.
b) a mutually
acceptable solution is not reached during consultations, the Parties
shall have recourse to the procedures under Chapter XX (Dispute
Settlement) of this Agreement.]
[29.10. No Party shall modify the structure of its entities to avoid the
obligations of this Chapter.]]
[Article 30. Designation of Contact Points]
7
[Article 31. Technical Cooperation [and Assistance]
[31.1. The Parties shall provide each other with technical cooperation
[and assistance], taking into account the specific needs of the Parties,
through the development of in the area of training programs human
resources [in order to achieve a better understanding of their respective
government procurement and statistical systems] [as well as better
access to their respective markets and business opportunities in the field
of government procurement].]
[31.1. Developed economies shall endeavor to provide technical cooperation
[and assistance] to smaller and developing economies upon request to
facilitate their fulfillment of commitments and obligations agreed to in
this Chapter, including successful transitions to full compliance with
obligations at the end of agreed transitory periods. The mode, scope and
extent of application shall be agreed bilaterally among the relevant
Parties.]
[31.2. The Parties shall make every effort to provide technical
cooperation [and assistance] taking into account the specific needs of
Parties upon request of one of the Parties, with a view to facilitating
their fulfillment of the commitments and obligations agreed to in this
Chapter. For that purpose, the differences in the levels of development
and size of the economies of each of the Parties to the Agreement shall be
taken into account.]
[31.3. Technical cooperation [and assistance] may include, inter alia,
the following areas:
a) consulting
on the design and implementation of electronic government
procurement systems; b) institutional
strengthening and capacity building; c) training and
development of human resources associated with government
procurement management;
[d) training
aimed at increasing to maximum level of access to opportunities of
government procurement for the suppliers, in particular, of small
and medium enterprises in public markets of the other Parties;] and [e) explanation and
description of specific aspects of the Parties’ government
procurement systems, such as their appeals mechanisms.]]
[33.1. The Parties shall establish a Government Procurement Committee [,
composed of representatives of each of them, to be appointed within (…)
days following the entry into force of this Agreement.]]
[33.2. The Government Procurement Committee shall have the following
duties:]
[a) oversee the
implementation of the Chapter and compliance with its provisions;]
[b) unless
otherwise agreed to by the Parties, review the results of this
Chapter’s application every two (2) years;] [c) meet [at least]
once a year [, or when necessary,] to [examine] [evaluate] the
operation of the Chapter and progress in achieving its objectives;]
[d) conduct
consultations and studies intended to incorporate the entities
listed in Annex XX (Entities - no text) into the scope of
this Chapter;]
[e) promote the
development and implementation of the [electronic] information and
intermediation system referred to in Article 16 (Publication of
Notice of Solicitation);]
[f) coordinate
the exchange of statistical information on government procurement;]
[g) coordinate
and promote the design of training programs for the Parties’
competent authorities;]
[h) enhance
technical cooperation and assistance referred to in Article 31
(Technical Cooperation [and Assistance]); and] [i) promote
opportunities for micro-enterprises and small and medium-scale
enterprises, [among other activities] [of Parties].]
[33.3. The regulation and specific functions of the Committee on
Government Procurement is in Annex XX (Administration of the [Agreement]
[Chapter.] - no text) to this Chapter.]
[33.4. The Committee may set up working groups or other auxiliary bodies
to help in carrying out its assigned tasks.]
[33.5. The Committee on Government Procurement shall undertake the
necessary steps to create within the Hemisphere, statistical systems and
an information platform that would allow the systematization of the
information on Government Procurement, with sufficient transparency and
without discrimination.]
Chapter XVIII
1
This text has been reorganized in accordance with the template approved by
the TNC for the draft Chapters as established in “Guidance and
Instructions to the FTAA Entities” (FTAA.TNC/23).
* Note that the term
“Procurement” has been agreed to in the English version of this Chapter
while the Spanish version utilizes three options: “compras/contrataciones/adquisiciones.”
These alternatives are not explicitly identified throughout the English
version.
* Note that the term
“supplier” has been agreed to in the English version of this Chapter while
the Spanish version utilizes the two options: “proveedor/prestador.” These
alternatives are not explicitly identified throughout the English version.
2 The NGGP agreed it would be appropriate to consider this item as a market
access issue or as an exception.]
3 [See footnote 2.] 4 [See footnote 2.] * Note that the term in the title referring
to “offset” has been agreed to in the English version of this Chapter,
while the Spanish version utilizes the following phrase: “Condiciones Compensatorias Especiales” and “Compensaciones.”
5 The NGGP agreed to
discuss the need for compliance provisions in the Government Procurement
Chapter at a later stage in the negotiations, in consultation with the
FTAA Technical Committee on Institutional Issues (TCI).
*
Note that the consistency between the English and the Spanish versions for
the use of the term “solicitation” (participación) and “tendering” (licitación)
in Articles 16 and 17 needs to be re-examined. * Note that there is a discrepancy between
the English and Spanish versions. The Spanish version utilizes the term
“Todo” meaning “All” and the English version utilizes the term
“Any” meaning “Cualquiera” in this paragraph.
6
The NGGP
agreed to discuss the need for general exceptions to the Government
Procurement Chapter at a later stage in the negotiations, in consultation
with the FTAA Technical Committee on Institutional Issues (TCI). 7 The NGGP agreed to
defer the discussion on the designation of contact points.
8 The NGGP agreed to defer
the discussion on the Article on Dispute Settlement until progress has
been analyzed at the level of the NGDS.
9 The NGGP agreed to defer
the discussion on this Article until further progress in the development
of this Chapter is achieved. |
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