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FTAA - Free Trade Area of the Americas

Draft Agreement

Chapter on Government Procurement


Continuation

[Article XVIII. Publication of invitation [to tender]]

[1. [The Parties will carry out the procedures for [publicity and invitation for the participation of suppliers] in public procurement established in their respective regulations in force, guaranteeing the principles of transparency [,] [and] non-discrimination [, and flexibility] .] [A Party shall publish [an] [at least ___ ] invitation[(s)] to tender, for all procurements covered by this Chapter, except in the cases of [limited tendering] [limited tendering [and other with fewer requirements]] [limited tendering [and selective tendering]] .] [A procurement entity shall publish an invitation for the participation of suppliers in the government procurements established in this Chapter, except in the cases of limited tendering and selective tendering procedures, guaranteeing the principles of transparency, non-discrimination and flexibility.] ]

[2. The publication shall be made [in the official national [gazette] [document] [and through the electronic information system of each one of the Parties] [as well as by electronic means].] [in a national daily newspaper with broad circulation or any other [means of communication or] publication used for this purpose [, as listed in Annex XVIII.2 (Publication of Invitation to tender- no text )].] [by methods which may include, but are not limited to, traditional media, such as newspapers and magazines, as well as electronic media.] [in an electronic or paper media which is widely disseminated and readily accessible to the general public.] ]

[3. [[Notices] [The Parties shall guarantee in their respective legal frameworks that notices] of invitations [to tender]] [Invitations to tender] [should] [shall] contain the information necessary for suppliers to be able to evaluate their interest in participating in the procurement, [including [at least] [as far as possible]: ]]
[a) the name and address of the [calling] entity [that will award the contract], as well as the procurement method that will be used and whether it will involve negotiation;] 

[b) a description of the intended procurement, [including the nature and quantity [, as well as place of delivery of the [goods to be supplied , the services to be provided, or execution of public works]]];] 

[c) [date,] place and time at which those interested may read and obtain the comprehensive text [of the tender document] [of the tender conditions], as well as additional information on the process;] 

[d) the [[place, date,] cost, currency, form of payment and] way to obtain the [tender documentation] [tender conditions];] 

[e) the language [or languages] in which the [tender documentation] [tender conditions] can be obtained and [in which] the suppliers shall present their proposals;] 

[f) in the case of public works, the bond required;] 

[g) the place and time-period for the submission [,] [and] opening [, and consideration] of tenders;] 

[h) the tender validity period;]

[i) if selective procedures are used, the time limits for the submission of applications to qualify for participation in the intended procurement;]

[ j) the deadline for fulfilling the contract;] 

[k) date to begin and conclude the delivery of the goods object of the tendering procedure;]

[l) the origin of the funds that will finance the tender; and] 

[m) an indication that the procurement is covered by the Chapter.]
[4. [Once the notice of tenders has been published, any change in 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 absolutely clear that the change does not affect the formulation of proposals.] [If it becomes necessary to amend information provided to suppliers [during the procurement process] [before the date of reception of bids], procuring entities shall provide the amended information [in the form established for the original documentation]:]
[a) to all of the suppliers that are participating at the time the information is amended; and]

[b) in adequate time to allow such suppliers to modify and re-submit their initial tenders, as appropriate.]]
[Article XIX. Invitation to participate in a Supplier List under Selective Tendering Procedures] 

[1. Before establishing the closed list of qualified suppliers, procuring entities shall publish, in one of the publications listed in Annex XIX.1 (Invitation to participate in a Supplier List under Selective Tendering Procedures- no text ), a notice of the opportunity for interested suppliers to apply for inclusion in that list. Such notice shall contain the following information:]
[a) name and address of the calling entity;]

[b) a description, in as much detail as is available, of the goods or services to be procured from suppliers included on that list;]

[c) the conditions to be fulfilled by suppliers in order to be included on that list;] 

[d) the place where the participants shall appear;]

[e) the documents to be submitted for evaluation;]

[f) the period of validity of the list; and]

[g) a statement that the notice constitutes a notice of the opportunity to apply for qualification to be included on the list.]
[2. For as long as a procuring entity maintains a closed list of qualified suppliers, such entity shall publish a notice of the opportunity for interested suppliers to apply for inclusion on that list, in accordance with the requirements of paragraph 1 above, at least once each year.] 

[3. Procuring entities maintaining such closed lists shall, on request, provide additional information in a timely manner which allows all suppliers who have expressed an interest to have a meaningful opportunity to assess their interest and, if they choose, apply for inclusion on a closed list of qualified suppliers. [This information shall include the information contained in the notices referred to in Articles XXIII through XXV of this Chapter, to the extent available.]] 

[Article XX. Time Periods for responses to inviting tenders]

[1. [[Any] [The Parties shall guarantee in their respective legal frameworks that any] prescribed time periods for the tendering process [shall be] [is] adequate to allow participating suppliers of all Parties to this Chapter to prepare and submit responsive tenders.] [The time limits established in the call for tenders shall be based on the type of process involved [and the conditions related to same].]]

[2. In determining a time-limit, entities shall, consistent with their reasonable needs, take into account such factors as the complexity of the intended procurement, the extent of subcontracting anticipated, the normal time for transmitting tenders from foreign and domestic suppliers and the time required for joint regional bidding procedures by a group of states.]

[3. The procuring entity shall take into account the delays in publication.]

[4. Procuring entities shall apply the same time periods for all suppliers.]

[5. If, as a result of a need to amend information provided to suppliers during the procurement process, a procuring entity [must] [may] extend the time period for the tendering procedures, such entity shall permit all participating suppliers to submit final tenders in accordance with a common deadline.]

[6. For publishing an invitation to tender the time periods are:]
[a) open tendering: at least [30] days prior to the final period for delivery of proposals;]

[b) selective tendering: at least [15] days prior to the final period for delivery of proposals.] 
[7. Except as provided for in Article XXI of this Chapter:]
[a) a procuring entity using open tendering or selective tendering procedures shall provide no less than [40] 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.]

[b) a procuring entity using selective tendering procedures shall provide no less than [25] calendar days, beginning on the date on which the notice of invitation to tender is published, for interested suppliers to submit their applications for qualification.] 

[c) procuring entities using selective tendering procedures shall provide no less than [40] 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.] 
[8. [[In order to ensure fair [and equitable] treatment for all tenderers [, in particular, suppliers from smaller economies,]] a minimum of [45 – 60] days [should] [shall] be allowed for the preparation and submission of bids [unless, such a time period would severely affect the objectives of the tender]. ] [Accordingly, a minimum period of ___ days shall be established between the notice to participate in the process and the deadline for the receipt of tenders.] ]

[9. The notice of the opportunity for interested suppliers to be included in the closed list of qualified suppliers for the purposes of conducting a selective tendering procedure shall be published at least [60] [30] days before establishing that list.] 

[10. These time periods shall be calculated as of the [last] date of publication of the [notice of tenders] [notification].]

[11. In the case of extreme urgency or of subsequent publications dealing with contracts of a recurring nature, shorter time periods may be used, consistent with the principles of fairness and transparency]

[Article XXI. Shorter Time Periods]

[1. Under the following circumstances, procuring entities may replace the time periods referred to in this Chapter with a period which is sufficiently long to enable suppliers to submit responsive tenders, but which in no case shall be less than [10] calendar days from the date on which the notice of invitation to tender is published [or issued]:] 
[a) if a separate notice has been published at least 40 calendar days and not more than 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 40 days may be reduced to not less than 24 calendar days];]

[b) in the case of the second or subsequent publications dealing with contracts of a recurring nature [, the period of 40 days for reception of bids may be reduced to not less than 24 calendar days];]

[c) in the case of procurement of commercial goods and services which 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 uses qualified open tendering procedures or selective tendering procedures; and]

[d) when, for duly substantiated reasons of extreme urgency brought about by events unforeseeable [or inevitalbe] by the entity, [the adherence to the time periods referred to in this Chapter would result in serious injury to the entity or the relevant Party [; however, concerns relating to the amount of funds available to an entity within a particular period of time shall not be considered to be a reason of extreme urgency for these purposes] [the periods may be reduced to not less than ten calendar days]].] 
[2. When a procuring entity publishes a notice of invitation to tender or invitation to participate in a supplier list in accordance with this Chapter in an electronic media listed in Annex XXI.2 (Shorter Time Periods – no text ), the entity may reduce the time periods provided for in this Chapter by up to 5 calendar days. The use of this provision, however, shall in no case result in the reduction of those time periods to less than 10 calendar days from the date on which the notice of invitation to tender is published.]

[3. Each Party shall apply transparent procurement procedures, with time periods in accordance with its legislation, to enable the suppliers of the Parties to prepare and submit responsive tenders to the invitation to participate.]

[Article XXII. [Tender Documentation] [Tender conditions]]

[1. [[In the tender documentation the] Procuring entities shall [provide to suppliers tender documentation that includes] [include] [all] information necessary to permit suppliers to prepare and submit responsive bids [.] [,]] [[Unless] [unless this has] already [been] provided in the notice of invitation to tender [, such documentation shall include [a complete description of] [in a detailed way, the following information]:]]]
[a) [the] [name and] address of the [calling] entity to which [tenders] [bids] [proposals] should be sent, as well as the address where requests for additional information should be sent;] 

[b) the language or languages in which tenders and tendering documents should be submitted; ]

[c) the periods for reception of bids, and the date, time and place for their opening; and]

[d) the intended procurement, including the nature [and quantity] of the goods or services to be procured and any requirements to be fulfilled, including any technical specifications, conformity certification, plans, drawings or instructional materials;] 

[e) any conditions for participation in the procurement, including any financial guarantees, information and documents required from suppliers;] 

[f) all criteria to be considered in the 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 products or services of other Parties, customs duties and other import charges, taxes] and currency of payment;] 

[g) the time limits for the receipt of tenders [, and the date, time and place for the opening of tenders]; and ]

[h) [the terms of payment, and any other terms or conditions] [the terms and conditions of contract] [.] [;and]]

[i) the persons authorized to attend the opening of the bids.]
[Article XXIII. Qualification of Suppliers]

[1.[ In the process of qualifying suppliers,] [The] requirements for suppliers shall not constitute [a] [an unnecessary] barrier to [access] [trade]. [Parties shall not discriminate among suppliers of other Parties or between domestic suppliers and suppliers of other Parties.] ]

[2. Each Party shall provide, in the selection process, equitable opportunities to the suppliers included in the lists or registries of the Parties. An entity shall not use the qualification process, including the time required for the process, to keep suppliers of another Party off a list of suppliers [, or to disregard them for a given procurement].]

[3. Parties shall ensure that any conditions for participation in a tendering process used by its procuring entities [shall be] [are] limited to those which are essential to ensure a potential supplier [’s] [has the legal, technical and financial] ability to fulfil the requirements and technical specifications of the contract in question.] 

[4. Parties shall ensure entities covered by this Chapter [shall] recognize as qualified suppliers such domestic suppliers or suppliers of another Party that meet the requisite conditions for taking part in a given procurement process covered by this Chapter.]

[5. Parties shall ensure entities [shall] base their [supplier] qualification decisions solely on the conditions for participation that have been specified in advance in notices or tender documentation.] 

[6. Parties shall ensure [entities [[shall] evaluate the financial, commercial and technical capabilities of a supplier on the basis of that supplier's global business activities, and] 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 an entity of that Party or that the supplier has prior work experience in the territory of that Party] [that entities do not impose the condition that the supplier must have previously been awarded one or more contracts by an entity of that Party or that the supplier has prior work experience in the territory of that Party].] 

[7. Nothing in this Article shall preclude the exclusion of a supplier on grounds such as bankruptcy or false declarations.] 

[8. Without prejudice to the right of suppliers to protect their intellectual property or trade secrets, the procuring entities may require those participating in the tendering process to submit pertinent documentary proof showing that:
a) They possess the necessary technical competence and sufficient financial resources, equipment and other physical installations, business acumen, experience and reputation, for fulfillment of the contract to be awarded.

b) They have the necessary legal capacity to sign contracts.

c) They have complied with their tax and social security obligations.
9. Any requirement established in accordance with the foregoing paragraph shall be included in the tender documents and shall be equally applicable to all suppliers of the Parties.]

[10. The financial, commercial and technical capacity of a supplier shall be judged both on the basis of that supplier's global business activity, including its activity in the territory of the Party of the supplier, and its activity, if any, in the territory of the Party of the procuring entity.]

[Article XXIV. [Prequalification] Registers [of Suppliers]]

[1. The Parties may establish a [National] [Pre-qualification] Registry [of Suppliers] for all persons, companies or entities that wish to compete for contracts to procure goods, works and services. [This registry should be kept by the agencies and entities that carry out bidding processes, or a central agency which regulates such activities.] ]

[2. Parties whose entities use [permanent lists or] registers of [qualified] goods suppliers and service providers shall ensure that the inclusion in [a list] or register, is for no other reason than to verify their aptness to conduct business with the Party [, and [shall not raise any] [and not that of raising] [impediments] [obstacles] to their inclusion in the list of any goods supplier or service provider of any other Party].]

[3. Tenderers who, for reasons defined in the respective legal frameworks of the Parties are prohibited from either direct or indirect participation in any procurement competition, may not be included in the Registry of Suppliers.]

[Article XXV. [Pre]Qualification and Registration Procedures.]

[1. Each Party shall:]
[a) ensure that each of its entities uses a single qualification procedure. Where the entity establishes the need for a different procedure, it shall employ additional or different qualification procedures, which must be duly justified;] 

[b) endeavor to minimize the differences between the qualification procedures of its entities.]
[2. [Qualification procedures shall be consistent with the following:] [Each Party shall ensure that the qualification procedures defined in its respective legal framework are consistent with the principles of transparency and non-discrimination in this Chapter.]]
[a) the conditions for the participation of suppliers in tendering procedures shall be published in adequate time to enable suppliers to initiate and complete the qualification process;]

[b) goods suppliers or service providers can apply for [registration,] qualification [or entitlement] at any time [, and shall submit the required documentation [based on the relevant legislation of each Party]];] 

[c) all [goods] [qualified] suppliers [or service providers] that so request are put on the lists as soon as possible [and without undue delay];]

[d) when, after publication of a notice of invitation to tender for which there is a qualification requirement [or after publication of a notice of the opportunity for interested suppliers to apply for inclusion on a closed list of qualified suppliers], a supplier that is not yet qualified requests to participate in the relevant procurement process, the entity shall promptly start the qualification procedure. The entity shall consider such supplier for the relevant procurement, provided there is sufficient time to complete the qualification procedure; ]

[[e)] information concerning business activity prior to and up to their registration as suppliers, shall be received from the interested parties. [The information required figures in Annex XXV.3 e) (Qualification and Registration Procedures- no text )];]

[f) entities shall promptly communicate to suppliers that have applied for qualification its decision on whether or not they qualify [, as well as the reasons therefor]; ]

[g) where an entity rejects an application for qualification, or ceases to recognize the qualification of a supplier, that entity shall provide, without delay, upon the request of the supplier, [relevant information on the reasons for its action] [a written explanation of the reasons for its decision]; and]

[h) all goods suppliers or service providers included in the lists or registers are notified if such lists and registers are cancelled or if they have been removed from them.]
Article XXVI. Application of Technical Specifications

1. Each Party shall ensure that its entities do not prepare, adopt, or apply any technical specification with the purpose or effect of creating unnecessary obstacles to trade [, eliminating or restricting competition [, or discriminating against the providers of other Parties]]

[2. Each Party shall ensure that, where appropriate, the technical specifications shall be [based [primarily]] [specified in terms of] on the performance requirements of the product or service being procured, rather than on design and descriptive characteristics. ]

[3. [Technical specifications shall be based on international standards, national norms or technical standards, and must be compatible with the provisions on technical barriers to trade.] [In establishing the technical specifications for each product or service being procured, each Party shall ensure that its entities specify, whenever available and applicable to that Party, an existing domestic or international consensus standard, except where the use of a consensus standard would fail to meet the entity's program requirements or would impose more burdens than the use of a government-unique standard. Each Party shall ensure that, whenever there is an existing consensus standard for a product or service being procured and an entity specifies a government-unique standard, such entity shall maintain an official record explaining why the existing consensus standard would fail to meet the entity's program requirements or would impose more burdens than the use of a government-unique standard.] [The technical specifications and certification of the quality of the products or production processes shall be based on international standards [recognized by the Parties] or, where no such standards exist, on the domestic technical regulations and technical standards of the Party where the procurement is being done and if the procuring entity considers it feasible and appropriate in its counterparts in the other Parties.]]

[4. Each Party shall ensure that the technical specifications prescribed by its entities do not require or refer to a particular trademark or tradename, patent, design or type, specific origin or producer or supplier unless there is no sufficiently precise or intelligible way of otherwise describing the procurement requirements and provided that, in such cases, words such as “or equivalent” are included in the tender documentation.] 

[5. The technical and professional capabilities shall be limited solely to the areas of greatest relevance and meaningful value to the purpose of the tender set out in the documentation. There shall be no requirements of minimum quantities of services provided, or time periods in which they were supplied. Nevertheless, for purposes of technical qualification and where the complexity of the service or the work so requires, the experience gained over the years prior to the call for tenders shall be taken into consideration.] 

[6. 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 or company that may have a commercial interest in that procurement.] 

[Article XXVII. Submission, receipt [and] [,] opening [of] [, evaluation and awarding contacts under] tenders]

[1. [[Procuring] [Contracting] entities shall receive and open all tenders under procedures that guarantee the transparency, [fairness,] [security,] impartiality, [and public disclosure] of the procurement process. [, with due regard to proprietary rights of bidders and national security interests] .] [All tenders solicited by an entity under open or selective tendering procedures shall be received and opened under procedures and conditions guaranteeing the regularity of the opening of tenders. The entity shall retain the information on the opening of tenders.]]

[2. [In the case of a public bidding process,] all [physical] [natural] and juridical persons may submit tenders who meet the requirements established [and are not legally prohibited from doing so].]

[3. [The Parties shall also [use] [apply] the procedures [established in their respective legislation in force] for the submission, receipt and opening [and evaluation] of tenders [provided for in their respective legislation in force] [, provided they conform to the provisions of this Article] [guaranteeing the transparency, fairness, security, impartiality, and public disclosure of the procurement process ].] [Procuring entities shall use procedures for the submission, receipt and opening of tenders in accordance with the following:]]
[a) [tenders shall be presented in writing [only], [in sealed envelopes] [in closed envelope], whether directly or by mail [or by electronic media when expressly indicated in the tender document and when doing so does not contravene the principles of this Chapter];] [when tenders by telex, telegram, telecopy or electronic mail 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 clauses and terms of the invitation]; ] [[Entities may use electronic media when expressly indicated in the tender document] [and when doing so does not contravene the principles of this Chapter];]]

[b) [a tender made by means of electronic transmission must be confirmed within the time-frame set in the invitation or the tender document, by the dispatch of the original document of the tender or a signed copy by means of electronic transmission.] For the purpose of this paragraph, electronic means of communication includes those by which the receiver can produce a printed copy of the tender at the receiving end of the transmission; ]

[c) the content of the electronic message shall prevail in the case where there is a difference or conflict between it and any documentation received after the time limit for the receipt of tenders;] 

[d) tenders presented by telephone shall not be permitted;] 

[e) tenders shall be duly signed and paged numbered;]

[f) tenders must be presented on the date, and at the place and time established in the tender documentation, along with a declaration stating that all of the clauses and conditions of the tender document have been accepted;] 

[g) the awarding agency shall extend a certification indicating the date, place and time the tender was received;] 

[h) tender must be presented in the language of the Party that issued the call for tenders;] 

[i) tenders received by the entity after the deadline for presentation shall be returned unopened to the corresponding suppliers;] 

[j) tenders will be opened in public session [in the presence of the tenderers and any other interested party, on a date] and at a time and place established in the tender documentation. [A record shall be made of the opening act, listing the tenders received and including the observations made by those present. The record shall be signed by the representatives of the entity and by the bidders [that so desire]];] 

[k) the procuring entity shall guarantee the protection of confidential information included in the tenders;]

[l) procuring entities shall not penalize any supplier for reasons attributable exclusively to that entity [, specially to] [In particular, entities shall not penalize] suppliers whose tender is received after the time specified for receiving tenders if the delay is caused solely by the entity; and ]

[m) entities may allow for the correcting of errors of form or errors of a non-substantial nature, provided such corrections do not alter the competitive conditions [or introduce discriminatory treatment between suppliers]. In doing so, they shall provide the same opportunities to all participating suppliers.]
[4. The Parties shall guarantee that the procedures for evaluation of tenders and awarding of contracts established in their respective laws will be transparent and will guarantee non-discrimination.]

[5. Each Party shall guarantee that its procedures are transparent and non-discriminatory, and applied with due process.]

[Article XXVIII. Criteria for assessing bids]

[1. Assessment criteria [shall be described [explicitly] in the notice and tender documentation provided in advance to all participating suppliers [and] shall be transparent, objective and measurable]. [The evaluation systems used to pre-qualify enterprises and the evaluation systems used to qualify tenders shall be part of the tender documentation and the call for tenders, which must be delivered together.]]

[2. To be considered for an award, a tender must, at the time of opening, conform to the [essential] requirements stipulated in the invitation or tender documentation and have been submitted by a supplier that complies with the conditions for participation. [Neither the tender of the winner, nor the terms and conditions stipulated in the [tender] [contract] documentation, may be altered.] ]

[3. If the entity has received a tender that is abnormally lower in price than other tenders submitted, the entity may inquire of the supplier to ensure that it can comply with the conditions of participation or is or will be capable of fulfilling the terms of the contract. [If not, that tender will be rejected.]] 

[4. Cost elements to be used in assessing the price of the tenders shall include transportation, insurance and inspection costs. In the case of goods and services of other Parties, tariffs and other import charges, taxes and currency of payment will be considered.]

[Article XXIX. Negotiation Disciplines 

1. National law permitting, an entity may conduct negotiations only:
a) in the context of a procurement in which the entity has, in the tender notice published in accordance with Articles 23 and 24, indicated its intent to negotiate; or

b) where 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.
2. An entity shall use negotiations primarily to identify the advantages and disadvantages of the tenders.

3. An entity shall treat all tenders in confidence. In particular, no entity may provide to any person information that would enable any supplier or provider to bring its tender up to the level of any other supplier or provider.

4. No entity may, in the course of negotiations, discriminate between the suppliers of goods or the providers of services. In particular, an entity shall:
a) carry out any elimination of suppliers of goods or providers of 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 or providers remaining in the negotiations;

c) permit all remaining suppliers of goods or providers of 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 providers of services to submit final tenders in accordance with a common deadline.]
[Article XXX. Criteria for awarding of contracts]

[1. Each Party shall ensure that awarded contracts [are duly grounded] on criteria established in advance by its entities [, respecting the basic principles of [[equality] [due process] [equity], [morality,] legality, impartiality, and] transparency [and non-discrimination] ].] 

[2. [Procuring entities shall award each contract to the tenderer [who has been determined to be fully capable of undertaking the contract and] whose tender is [either the lowest tender [, within those offering the same quality and technical specifications,] or] the tender which is determined to be the most advantageous [for the contracting entity] in terms of the requirements and evaluation criteria set forth in the notices or tender documentation [[, unless otherwise decided for reasons of the public good]. Tenders [of] [for] goods and services presented by suppliers of Parties shall not be increased by levying of taxes that introduce discrimination between domestic suppliers of the Party where the tender is made and those of other Parties].] [An entity shall award the contracts in accordance with the following:
a) to be considered for the award, a bid must meet, at the time of the opening, the essential requirements stipulated in the invitation or in the bidding conditions and be made by suppliers that satisfy the conditions for participation;

b) if the entity receives a bid whose price is abnormally lower than the others submitted, the entity may question the supplier to ensure that the latter satisfies the conditions of participation and is or will be capable of performing the terms of the contract;

c) unless for reasons of public interest the entity decides not to award the contract, the entity shall award it to the supplier that it considers fully capable of performing the contract and whose bid has the lowest or most advantageous price according to the specific evaluation criteria established in the invitation or in the tender conditions;

d) the awards shall be made in accordance with the criteria and the essential requirements established in the tender conditions; and

e) the clauses relative to options shall not be used to evade this chapter.]]
[3. No entity of a Party may 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 in the territory of that Party. ] 

[Article XXXI. Awarding of the Contract]

[1. [After the winning tenderer is notified, the contract will be signed. Prior to signing, the tender will [, when required,] present a performance bond, and during [the] [its] signing must present the payment bond [where this is required in the contract documentation].] [All participants shall be notified of the act of award at the domicile indicated, not later than three (3) business days after the day of the award.]]

[2. [If for any reason the tenderer selected does not sign the contract or does not present the bond, the contract may be awarded to the tenderer with the next highest rating, without the need to go through a new bidding process.] [The contract shall be signed not later than ___ after notification of the selected tenderer. After execution of the contract, the selected supplier shall submit a performance bond within a period of ___, and as the case may be, shall submit the advance payment bond posted for the total amount of the advance, at the time of delivery of the same.]]

[3. [The awarding of the contract shall be communicated to all the participants at the domicile they have indicated, within [three (3)] [fourteen (14)] [(5)] working days following the awarding.] [If the interested party does not sign the contract due to causes imputable to the same, during the period referred to in the preceding clause, the department or entity may, without need for a new procedure, award the contract to the participant that has submitted the next lowest solvent bid, and so on successively if the last participant does not accept the award, provided the difference in price with respect to the initial winning bid is not greater than ten percent.]]

[4. [After [60 (sixty)] [45] days following the date of the delivery of proposals, if no contract is awarded, the bidders shall be released from their commitments.] [Subject to an extension of the tender validity period, if after 90 days following the date of the delivery of proposals no contract is awarded, the bidders shall be released from their commitments.]]

[5. Procuring entities shall not cancel a procurement process, or terminate or modify awarded contracts in a manner which circumvents the objectives and requirements of this Chapter. ]

[6. [The documentation] related to the [government contracting] [contract award] procedures shall be kept for at least [5] years.] 

Article XXXII. Information regarding the awarding of the contract

[1. Parties shall ensure that its entities provide an effective [understanding and] dissemination of the results of government procurement processes [, in accordance with the provisions of their domestic legislation].] 

[2. Procuring entities shall [promptly] [upon request] [inform suppliers that have submitted tenders of the procurement award decisions [within a period of ___ calendar days], and] provide opportunities for losing bidders to obtain an explanation of the reasons for not being selected [and the relative characteristic and advantages of the tender selected, [the name of the winning supplier, the date of the award and the value of the contract awarded, in accordance with the principle of transparency. If so requested, the entity must inform them in writing by means of an explanatory resolution]].] 

[3. A Party may seek additional information on the award of a contract as may be necessary to determine whether the procurement was made [fairly and impartially] [in a manner compatible with this Chapter]. To this end, the Party of the procuring entity shall provide information on the characteristics and relative advantages of the winning tender and the contract price. [The Party making the request may not reveal the additional information referred to , except with the consent of the Party that has provided the information.]] 


Continuation: Article XXXIII. Publication of the Award]

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