FTAA - Free Trade Area of the Americas
Second
Draft Agreement
Chapter on Government Procurement
[Article
I. Objective
1. The objective of this Chapter is
to expand access to the government procurement markets of the FTAA
countries.
[Article II. General Principles
1. In order to attain the goal in
Article I, each Party shall [guarantee] [recognize]:
a) the principles of
non-discrimination, transparency, [legality,] [impersonality,]
[morality,] [objectivity] due
process, publicity, [and] [a link to the individual
instrument of a procurement requirement,] in government
procurement, [pursuant to the provisions of this Chapter];
[and]
[b)
the development of cooperation and technical assistance mechanisms.]
2. As regards national
regulations, the each Party shall guarantee:
a) Laws, regulations, procedures
and practices implemented by entities listed in ANNEX ___[are
in agreement with] [give effect to] the
provisions of this Chapter;
b) Its national legislation will
be applied in [conjunction]
[congruity] with this chapter.
Article III. [National Treatment And Most Favored Nation Treatment]
[Non-Discrimination]
[1.
With respect to measures covered by the provisions of this Chapter [and
subject to the exception provided for in Article ___ (Exceptions)] [implemented
by entities through competitive procedures], each Party shall [immediately
and unconditionally] accord to the goods [and services]
[and public works] of another Party, [and] to
the suppliers [of such goodsand to service suppliers] [and
public works] of another Party [that offer such goods and
services] [and public works] treatment no less
favorable than [the most favorable treatment] the Party
accords to:]
[[a)]
its own goods, services [and public works] and suppliers
[of said goods and services] and public works [, and]
[.]]
[b)goods,
services [and public works] and [the]
suppliers [of said goods and services of any other Party] [or
third countries].]
[2.
With respect to measures covered by this Chapter, a Party may not:]
[a)
accord a locally established supplier treatment less favorable than
that accorded to another locally established supplier on the basis of
degree of foreign affiliation or ownership;]
[b)
discriminate against a locally established supplier on the basis that
the goods or services offered by that supplier for a particular
procurement are goods or services of another Party [or of any
non-Party].
[3.
This Article shall not apply to measures relating to customs duties or
other charges of any kind imposed on or in connection with importation, to
the method of levying such duties and charges, or to other import
regulations, including restrictions and formalities [,[and
measures affecting trade in services] other than laws, regulations
and requirements regarding government procurement covered by this Chapter].]
Article IV. [Prohibition of Offsets] [Offsets] [Performance Requirements]1
[1.
Each Party shall ensure that its entities do not take into account, seek,
or impose, [in the qualification and selection of suppliers, goods
or services, in the evaluation of tenders or in the award of contracts]
[in any stage of the procurement processes], [special
compensatory conditions (offsets)]
[performance requirements] [that diminish the
competitiveness of the procurement process] impose, seek or
consider offsets. [For the purposes of this Article, [special
compensatory conditions (offsets)] [performance requirements]
[offsets in government procurement] [are] [means]
[measures] [requirements] [conditions]
imposed or considered by an entity prior to, or in the course of the
procurement process, [in order to foster] [that encourage]
local development or improve its Party’s balance of payments accounts by
means of local domestic content requirements, licensing of technology,
investment, counter-trade or similar requirements.]]
[2.
Developing countries or smaller economies may apply compensatory
conditions provided these are objective, clearly defined and
non-discriminatory,] [and so long as they are only used for
purposes of qualifying and not as criteria for the awarding of contracts.]]
[Article V. Rules of Origin]
[1.
For purposes of government procurement covered by this Chapter, no Party
may apply rules of origin to goods imported from another Party that are
different from or inconsistent with the rules of origin the Party applies
in the normal course of trade.]
[2.
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 on market access for goods of the FTAA
Agreement.]
Article VI. Denial of Benefits
1. [A
Party may deny the benefits granted by this Chapter to a service
supplier from another Party, following notification [and
consultation,] [during the period included between the
presentation of tenders and the awarding
of the contract,] when it determines that the service
is being provided by an enterprise:
[a)
that has no substantial business activities in the territory of
another Party ]
[b)
that is not established in a FTAA Party, with “substantial
connections” to the Party, as defined by the national legislation of
the respective state.]
[c)
that is owned or controlled by persons of a non-Party ] [according
to the applicable laws of that Party,]
2.
[Any Party may make consultations relative to this Article during the
procurement processes conducted in any other Party State.]]
[3. A
Party may also deny the benefits of this Chapter if it is determined that
the denying Party:]
[a)
does not maintain diplomatic relations with the non-Party, or]
[b)
adopts or maintains measures with respect to the non-Party that
prohibits transactions with the company or that would be violated or
circumvented if the benefits of this Chapter were accorded to the
company.]
[4.
The national treatment and market access standards and commitments in the
Chapter on Services of the FTAA Agreement shall be applied in a
complementary manner.]
[Article VII. Scope of Application]
[1.
This Chapter applies to any measure [or modality]
specifically governing an entity’s procurement by any contractual means,
including purchase; lease; rental or hire purchase, with or without an
option to buy; and build, operate and transfer contracts and concessions
for public works. [Public contracts in the framework of the regime
of concessions are not covered by this Chapter.]
2. This Chapter applies to any
procurement contract for which the value is estimated, at the time of
publication of the notice of intended procurement, in accordance with
Article ___ of this Chapter, to equal or exceed the relevant threshold
specified in Annex [market access commitments]. The value of a contract
shall be estimated in accordance with the provisions of paragraph ___ of
this
Chapter.
]
[3.
Notwithstanding the provisions in previous paragraphs this Chapter shall
not apply to:
[a) subsidies or donations
accorded by one Party or one state enterprise, including loans,
guarantees and insurance supported by any Party;
b) government services or
functions, such as implementation of laws, social readaptation,
unemployment pension or insurance services, or services related to
social security, social welfare, public education, public instruction,
child care, health and protection; and
c) cross-border financial
services.]
[d)
any form of government assistance, cooperative agreements, subsidies,
grants, loans, equity infusions, guarantees, fiscal incentive, and the
provision of supplies and services by a governmental entity or its
representatives to any other governmental or non-governmental persons
or entities;]
[e)
government services or functions, such as
[law enforcement,] social readaptation services, [health,]
pension or unemployment insurance, social security or welfare
services, public education, public training, [public health,]
child healthcare and protection, and children’s services;]
[f)
government procurement governed by a regime of concessions;]
[g)
procurement financed with funds from international organizations,
international development agencies, multilateral technical assistance
organizations, and bilateral technical and financial assistance
organizations, which shall be governed by the provisions established
in the respective funding and technical assistance contracts;]
[h)
in the case of the smaller and lesser developed Parties, government
procurement which is intended to stimulate small and medium sized
enterprises;]
[i)
contracting of the services of fiscal agency or depository services,
liquidation or management services for regulated financial
institutions and sale and distribution services for government debt;]
[j)
procurement made by embassies and consulates overseas;]
[k)
purchases of works of art;]
[l)
the hiring of public employees, government loans, legal relations
derived from the provision of public services for which a fee is
charged, and other activities subject to a special procurement regime;]
[m)
occasional minor procurements (made out of petty cash);]
[n)
procurements between government entities;]
[o)
procurements between the State and users of services for which a fee
or general rate is charged;]
[p)
purchases of fresh produce;]
[q)
any measure adopted or maintained with respect to Aboriginal peoples.]]
[4.
This Chapter shall comprise government procurements whose value is equal
to or greater than the limits established in Annex ___ (Thresholds -no
text ).]
[5.Government
procurement that is totally or partially funded by international
organizations shall be governed by the procurement standards established
by these organizations.]
[Article VIII. [Thresholds] [Valuation of contracts]]
[1.
In determining whether a contract is covered under this Chapter,
procuring entities shall apply the following provisions:
(a) Procuring entities shall
not divide an intended procurement into separate contracts, or
otherwise use a particular method for estimating the value of a
contract for the purpose of avoiding the application of this
Chapter.
(b) In calculating the value
of a contract, an entity shall take into account all forms of
remuneration, including premiums, fees, commissions, interest,
other revenue streams provided for under the contract, and the
value of the maximum permissible options provided for by the
contract.
(c) Except as provided for
in sub-paragraph (d) of this Paragraph, a procurement that is
conducted in multiple parts, that is for an indefinite quantity,
that may result in the award of contracts to more than one
supplier, or that may result in the awarding of recurring
contracts, shall be valued at the total estimated value of the
procurement over its entire duration.
(d)
[Contracts
for which the duration is not known shall be valued at the actual
value of similar previous contracts awarded over the most recent
two-year period, adjusting for any anticipated changes in the
quantity and prices of the goods or services to be supplied.]
[In the case of contracts for an indefinite period, the
calculation will be made on the basis of the criteria established
in current legislation in each State Party for each contractual
mode and, in absence thereof, the basis will be the monthly
installment multiplied by 48 (forty-eight) .]]
[Article IX. Exceptions]2
[ [1.
This Chapter shall not apply to:]
[a)
agreements entered into in pursuit of economic integration at the
sub-hemispheric level;][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 implementation of the Most
Favored Nation and National Treatment clauses in said integration
agreements;]
[b)
acquisitions and procurement linked to situations of defense, national
security, public order, natural disasters and other emergencies
involving the protection of health and the environment;]
[c)
measures necessary to protect public morals, order or safety, human,
animal or plant life or health; intellectual property, or relating to
goods or services of handicapped persons, of philanthropic
institutions or of prison labor;]]
[2.
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.]]
[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 security interests relating to the
procurement of arms, ammunition or war materials, or to procurement
indispensable for national security or for national defense purposes.]
[Nothing in this Chapter shall be construed to prevent a Party State
from adopting the measures it considers necessary for protecting its
fundamental interests in regard to procurement related to national
security and defense.]
Article X. Dissemination of Laws and Regulations
1. Each Party
[a)
shall ensure that its entities provide effective dissemination of its
laws, regulations and administrative measures of general application
on government procurement, providing the suppliers of the other Party
with all necessary information for participating in said procurement
through the communications media called for in their respective
national legislation;
b) shall endeavor to implement a
unified electronic information system for the dissemination of all
laws, decrees, regulations, administrative rulings and any procedure
or legal rule relating to government procurement together with any
modification to that legislation that may be effected in the future;
c) shall inform [the
contact points,]
[the FTAA Secretariat] after the entry into force of
this Agreement of the laws regulating government procurement.]
[a)
shall promptly publish any law, regulation,
[judicial decision,] administrative ruling of general
application [and any procedure [(including standard
contract clauses)]] regarding government procurement covered by
this [Chapter] [.] [,] [Laws
and regulations] [these] shall be published no later
than their date of entry into force;
b) shall publish its laws,
regulations and any other legal provision in [officially
designated] media
[identified by the Parties in Annex --- (Publication of Laws
and Regulations- no text)] which are readily accessible
[to suppliers and other Parties] [to the public];
c) shall publish, in the same
media and in a prompt manner, all additions and changes to such
information, [as well as any changes in the names or different
variants with regard to contracting procedures. [The Parties
may directly report amendments to their laws and regulations using
electronic or other means of communication.]]]
[Article XI. Designation of Contact Points]3
[Article XII. [General Principles Governing] Procurement Procedures]
[1.
The Parties shall ensure that [their procuring entities use the]
[procurement] [tendering]
[modalities and] procedures [[established in their
national laws] [provided that these are] in
accordance with [the provisions of] [the principles
defined in] this Chapter] [used by their procuring entities
are not applied in a discriminatory manner.]]
[2. In
order to guarantee free competition 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.] [Each Party
shall ensure that its entities:
a) do not provide any suppliers
with information on a given procurement such that it can have the
effect of preventing competition; and
b) afford all suppliers equal
access to information on a procurement.]
[Article XIII. Selective Tendering]
[1.
[In order to ensure competition between the suppliers of the Parties,]
the greatest possible number of suppliers shall be invited to participate,
[both domestic and those] of the [other] Parties],
[as is compatible with the efficient working of the procurement
system.]
[2.
Any supplier may present its proposal, regardless of whether or not it was
invited to participate in the tendering.]
[3.
[When a supplier is not invited or] [if the participation of a
supplier in selective tendering is not permitted, the tendering entity
shall formally justify the reasons for its decision and make available to
the interested parties the relevant information.]]
[Article XIV. Limited Tendering]4/5
[1. A
Procuring entity may use limited tendering procedures in the following
circumstances [and under the following conditions, as the case may
be] [provided that it does not use such as procedures for the
purpose of avoiding competition among suppliers or protection of domestic
suppliers]: ]
[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.]
[b)
when the tenders presented:
i) do not conform to the
requirements established in the tender documentation;
ii) have been formulated
by suppliers that do not satisfy the legal, financial, or other
additional elegibility criteria established in this Chapter];
[c)
when absence of competition among suppliers to the same bidding
process is demonstrated ];
[d)
when, for works of art, [or technical work, the acquisition or
lease of movable goods, immovable goods or services], or for
reasons connected with the protection of exclusive rights, such as
patents, copyrights or [proprietary]
[restricted] [undisclosed] 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;
]
[e)
in so far as is strictly necessary when, for reasons of extreme
urgency [or disaster] brought about by events
unforeseeable [or inevitable] by the 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];]
[f)
for additional deliveries 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];]
[g)
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;]
[h)
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 [or private]
[selective or limited] [procurement] [tendering]
procedures];]
[i)
in anticipation that notice of the bidding process may perturb the
price of good and services to be purchased ;]
[j)
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]
[indisputably] the most appropriate for fully meeting the
objective of the contract;]
[k) 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 confidences, cause serious economic
disruption or similarly be contrary to the public interest;]
[l)
for purchases made under exceptionally advantageous conditions that
only arise in the very short term, such as 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;]
[m)
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,
ii) organized with a view to
awarding the design contract to the winner, and
iii) to be judged by an
independent jury;]
[n)
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;]
[o)
where the contracts in question are mere extensions of existing
contracts, provided there is just cause and it is authorized by the
competent entities;
p) where the price of the
contracts in question is the same throughout an entire area of that
industry, as a matter of custom, commercial practices or rates or
prices set or approved by the competent entities; and
q) where the contracts in
questions are barter contracts for the acquisition of movable or
immovable goods, subject to relevant appraisal.]
[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.]
[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.]
[Article XV. [Publication of invitation [to tender] [to participate]] ]
[1.
Each Party shall guarantee that their entities will use media which
is widely disseminated and readily accessible to the general public.]
[The Parties shall engage the publicity and invitation procedures for
the participation of suppliers in public procurement in accordance with
their respective domestic laws. To this end, the Parties shall notify,
once the FTAA Agreement enters into force, the media and time periods
established in their respective laws through which the publications in
Annex ___ shall be made. (Publication of the invitation to tender - no
text available).]
[2.
Each entity shall publish at least one
invitation to tender for all procurements covered by this Chapter.]
[3.
The publication shall be made in a national daily newspaper with broad
circulation, or any other media used for this purpose, including
electronic means, such as those
listed in Annex ___ (Publication of Invitation to tender- no text).]
[4.
The Parties shall endeavor [, to the extent possible,] to
implement an electronic information system in their respective entities
that allows for [effective]
[dissemination] [disseminating] the invitation
and information regarding participation in a government procurement,
especially that referring to business opportunities offered by the
entities.]
[5.
Once the [invitation to participate]
[notice of tenders] has been published, any change in the
tender document shall require the publication of a new call 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.] [before the date
of receipt of the tenders, the procuring entity shall make public the
modified information, including the new time periods set in the tender
documentation that enable interested suppliers to modify and submit their
tenders, as appropriate and pursuant to the provisions of this article.]
[Article XVI. [Content of Invitation [to tender] [to participate]]]
[1.
[The invitation [to participate] shall contain the
information necessary for suppliers to be able to evaluate their interest
in participating in the procurement, including at least :]
[a)
the name and address of the procuring entity [and [the
procurement method] [the procurement modality] that will
be used];]
[b)
a description of the intended procurement, including the nature and
quantity thereof;]
[c)
place, date, [time period] [[estimated cost] [approximate
value of the contract], currency, form of payment of the
intended procurement]]
[d)
means of obtaining the tender documentation as well as additional
information on the process;]
[e)
the language [or languages] in which the tender [documentation]
[conditions] can be obtained and [in which]
the suppliers shall present their proposals;] [and]
[f)
the place and time-period for the submission and opening of tenders[;][.]]
[g)
the tender validity period;]
[h)
if selective procedures are used, the time limits for the submission
of applications to qualify for participation in the intended
procurement;]
[i)
the deadline for fulfilling the contract;]
[j)
date to begin and conclude the delivery of the goods object of the
tendering procedure;]
[k)
the origin of the funds that will finance the tender;]
[l)
an indication that the procurement is covered by the Chapter ; and]
[m)
a statement of any economic or technical condition, and any financial
guarantee, information and documents required from suppliers.]
[Article XVII. Time Periods for responses [to inviting tenders] [to
invitations to participate]]
[1.
[[Any] [The Parties shall guarantee in their respective
legal frameworks that [any] [the] prescribed time
periods for [the tendering process shall be adequate] [responding
to the invitation to a procurement shall not be shorter than ___
working days, nor longer than ___ calendar days, as of the last
publication of the last invitation to participate and [to]
allow] participating suppliers of all Parties to this Chapter to
prepare and submit responsive tenders.] [Such time periods
shall be established depending on the modality and nature of the
procurement in question.]]
[2.
Procuring entities shall apply the same time periods for all suppliers.]
[3.
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.]
[4.
For submitting an invitation to tender the time periods are:
[a)
a procuring entity using open tendering procedures shall provide no
less than [40] [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;]
]
[b)
procuring entities using selective tendering procedures shall provide
no less than [40]
[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].
] ]
[5.
[[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.]]
[6.
The time periods in this Chapter, when not stipulated in domestic
legislation, shall be calculated as of the date of disclosure or as of the
availability of the information to all interested parties. Time periods
shall always be expressed in calendar days.]
Article XVIII. Shorter Time Periods]
[1. A
procuring entity may replace the time periods referred to in this Chapter
with a period that is sufficiently long to enable suppliers to submit
responsive tenders. In no case shall the time period be less than [10]
calendar days from the date on which the notice of invitation to tender is
published [or issued] except in the following circumstances:]
[a)
if a separate notice has been published at least 40 calendar days and
not more than 12 months in advance, [the period of 40 days may
be reduced to not less than 24 calendar days];
[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 no 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 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 ___; and]
[d)
when, for duly substantiated reasons of extreme urgency brought about
by events unforeseeable by the entity, the use of a 40-day time period
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.]
[2.When a procuring
entity publishes an advance notice of intended procurement in accordance
with Article ___ of this Chapter in an electronic media listed in Annex
___ 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 10 calendar days from the date on which the notice of intended
procurement is published.]
[Article XIX. [Tender Documentation] [Tender
Conditions] [Content of the Tender Documentation]]
[1.
[The Procuring entities shall provide to [interested]
suppliers [with] tender documentation that includes all
information necessary to permit [such] suppliers to prepare
and submit responsive 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] [procurement] 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 intended procurement, including the nature and quantity of the
goods or services to be procured and any requirements to be fulfilled;]
[f)
the necessary conditions required of suppliers for participation in
the procurement;]
[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
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;]]
[h)
the terms of payment, and any other terms or conditions;]
[i) the persons authorized to
attend the opening of the bids;]
[j)
the model contract, the terms and conditions for performance of the
contract;]
[k)
the penalties for non-performance of the contract;]
[l) the origin of the funds
that will finance the [procurement] [tender];
and]
[m)
the laws governing the procurement and challenge procedures.]
[Article XX. Registries,
Qualifications, and other Conditions for Participation of Suppliers ]
[1.
The Parties may establish a Registry 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
or service suppliers shall ensure that:
a) goods or service suppliers
can apply for registration, qualification or entitlement at any time;
b) all goods or service
suppliers that so request are put on the lists or registers as soon as
possible and without undue delay;
c) interested parties submit the
required documentation based on the relevant legislation of each
Party;
d) all goods suppliers or
service providers included in the lists or registers are notified if
such lists or registers are temporarily suspended or cancelled, or if
they have been removed from them;
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 goods supplier or service provider of any other Party. [A
Party shall not impose] requirements [for] [on]
suppliers [that constitute] [shall not constitute]
an unnecessary barrier [to access] [to
participation in government procurement].]
[3.
Where an entity requires suppliers to be included in a register or to
satisfy other conditions for participation in a [tendering] [procurement]
process, the entity shall publish a notice inviting interested suppliers
to apply for inclusion on the registry or recognition of qualification and
shall provide no less than [ ] calendar days prior to the final date for
the submission of tenders for such suppliers to submit their applications.
This notice may be the same as the notice of intended procurement or a
separate notification relating to registration or qualification.]
[4.
Where at any time within the [ ]-day period referred to in
paragraph ___, a supplier that has not registered or qualified submits an
application, the entity shall promptly start the relevant procedures and
shall allow such supplier to participate in the [tendering] [procurement]
process, provided there is sufficient time to complete the procedures
within the time period established for the [tendering] [procurement]
process.]
[5.
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].]
[6.
Each. Party shall ensure that:
[a)
any conditions for participation in a [tendering] [procurement]
process that are used by a procuring entity uses for are limited to
those that are essential to ensure a potential supplier has the
legal, technical and financial abilities to fulfill the requirements
and technical specifications of the contract procurement
in question;]
[b)
entities [covered by this Chapter] recognize as
qualified all suppliers that meet the requisite conditions of
participation;]
[c)
ensure that qualification decisions are based solely on the
conditions for participation that have been specified in advance in
notices or 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 [an entity of] that Party or that
the supplier has prior work experience in the territory of that
Party.]]
[7.
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] [procurement]
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;
[and]
b) They have the necessary legal
capacity to sign contracts;
[c)
They have complied with their tax and social security obligations.]]
[8.
Tendering entities may require from [goods or service]
suppliers an insurance-backed guarantee of the bid, as well as an
insurance-backed guarantee of performance.]
[9.
[Entities shall promptly communicate to suppliers that have applied
for qualification its decision on whether or not they qualify.]
[Where an entity rejects an application for qualification, or ceases
to recognize the qualification of a [goods or service]
supplier that entity shall provide, without delay, upon the request
of the supplier, a [written explanation of] [relevant
information on] the reasons for its action.]]
[10.
Nothing in the provisions set forth in the above paragraphs shall preclude
an entity of a Party from excluding a [goods or service]
supplier on grounds such as bankruptcy or false declarations, or that such
supplier is prohibited from participating in procurements by [penalties
which disqualify the supplier or provider from entering into contracts
with] entities [of the Parties] [of
that Party].]
[11.The
financial 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 XXI. 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] [stated primarily 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] [technical
regulations of the country in which the procurement is taking place].]
[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.] ]
[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 XXII. Submission, receipt
and opening of tenders]
[1.
[A procuring entity shall receive and open all tenders under
procedures that guarantee the principles established in the Articles ___
of this Chapter.] [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 procuring entities shall receive and open all
tenders pursuant to procedures consistent with the following:
a) Tenders shall be submitted in
writing, in accordance with the provisions of the tender document,
ensuring their confidentiality and integrity until the date, time, and
place indicated therein, together with a declaration of acceptance of
its clauses and conditions. Exceptionally, when the tender document
expressly allows it, tenders may be submitted by electronic media. In
this case, tenders shall be received by the procuring entity in the
respective public session, a record of which shall be signed by the
representatives of the entity and all the bidders present.
b) Once the time limit stipulated
in the tender documentation for receipt of tenders has expired, no
additional tenders will be accepted.
c) Tenders shall be opened in
public session, in the presence of the tenderers or their
representatives, on the date, time, and place established in the
tender documentation.]
[2.
[Provided they conform to the provisions of this Article], a
procuring entity of a Party shall [use] [apply]
[the procedures] for the submission, receipt and opening of
tenders [established in their respective national legislation in
force] [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]; [exceptionally, when
expressly provided in the tender document, tenders may be submitted in
non-written form. In such cases, the tenders shall be received by the
procuring entity in public session and entered in a record which shall
be signed by the representatives of the entity and all the tenderers
present;]]
[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
of the electronic transmission; ]
[c)
the content of the electronic message shall prevail in the case there
is a difference or conflict between it and any other documentation
received after the time limit for the receipt of tenders has expired;]
[d)
tenders presented by telephone shall not be permitted;]
[e)
the awarding agency shall extend a certification indicating the date,
place and time the tender was received;]
[f)
tenders received by the entity after the deadline for presentation
shall be returned unopened to the suppliers that presented them [or
shall be destroyed]once the deadline for legal challenge has
expired;]
[g)
tenders will be opened in public session [in the presence of
the tenderers and any other interested party, on a date,] at a
place and time 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]];]
[h)
a procuring entity 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
]
[i)
an entity may allow for the correcting of [non-substantial]
errors of form provided such corrections do not alter the competitive
conditions [or introduce discriminatory treatment between
suppliers]. [Neither the tender of the winner, nor the
terms and conditions stipulated in the [tender] [contract]
documentation, may be altered.] ]
[3.
The tenders must, at the time of opening, conform to the essential
requirements stipulated in the invitation and tender documentation and
have been submitted by suppliers that comply with the conditions for
participation [and are not legally prohibited from doing so].]
[Article XXIII. Negotiation
Disciplines
[1.[Domestic
law permitting, a procuring entity may conduct negotiations, providing
that it has been expressly stipulated in the tender documentation.]
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 prequalify 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 Articles ___ and ___, 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.
2. An entity shall use negotiations
primarily to identify the advantages and disadvantages of the tenders.
3. 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 on a common deadline.]
[4.
The negotiation disciplines shall be applied in those procedures in which
price is the determining element in the award.]
[5.Tenders
whose prices are not more than 5% higher than the lowest tender shall
be considered similar tenders.]
[6.
Negotiations may be required to improve tenders in cases of manifestly
objectionable prices]
[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 XXIV. Evaluation of tenders
and Awarding of contracts]
[1. 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.]] [The criteria for the evaluation of
tenders shall be described explicitly in the tenders, which shall be
transparent and objective, and neither limit nor exclude competition.]
[2.
The tender submitted by the offerer shall include all the costs comprised
in the final value of the procurement].
[3.
Each Party shall ensure that awarded contracts are grounded on the
criteria and the essential requirements established in advance by its
entities [on the invitation and tender documentation [,
respecting the principles established in the Articles ___ of this Chapter]].]
[4. In
order for a tender to be evaluated and considered for award of the
contract it must comply, at the time of the opening, with all the
requirements and guarantees called for in the tender.]
[5. A
Procuring entity shall award each contract to the tenderer [who has
been determined to be fully capable of undertaking the [same]
[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 it decides for reasons
of the public good not to award it]. Tenders of 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].]
[6.
The Parties shall not use the clauses relative to options to evade the
provisions of this Chapter.]
[7.
After the winning tenderer is notified, the contract will be signed. Prior
to signing, the tenderer will [, when required,] present a
performance bond, and upon its signing must present the payment bond.]
[8. 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,
providing it offers the same conditions as the winning tender.]
[9.
Subject to an extension of the tender validity period, if after [90]
[60] [45] days following the date of the delivery of
proposals no contract is awarded, the bidders shall be released from their
commitments.]
[10.
[The procuring entities may close a tendering procedure for duly
justified reasons of interest to the Administration, or cancel it for
reasons of irregularity or illegality.] [A Procuring entity
shall not cancel a procurement process, or terminate or modify awarded
contracts in a manner which circumvents the objectives and requirements of
this Chapter.]]
[11.
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 XXV. Dissemination and
Publication of the Awarding of the Contract
[1.
Parties shall ensure that their entities provide effective dissemination
of the results of government procurement processes, in accordance with the
provisions of their domestic legislation.]
[2.
The awarding of the contract shall be communicated to all the
participants at the domicile they have indicated, within [3]
[5] [14] working days following the awarding.]
[3. A
Procuring entity shall [promptly] [upon request] [inform
suppliers that have submitted tenders of the procurement award decisions
[within a [maximum] 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] [Likewise] , the entity must inform them in
writing by means of an explanatory resolution]].]
[4. A
Party [shall provide] [may seek] additional
information on the award of a contract as may be necessary to determine
whether the procurement was made according to the provisions of 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.]]
[5.
Having awarded a contract, entities shall publish, [for a
reasonable period of time] [one time only] [ at least once]
[information on contract awards] [a notice] [the
award], including: the name of the winning supplier, the value and
date of the contract; [a description of the nature and quantity of
the goods or services included in the contract; the name and contact
location of the procuring entity;] [the [name and]
position of the official authorized to sign the contract;] [and
the type of procurement procedure used, [and in cases where limited
tendering procedures are used, a description of the circumstances
justifying the use of such procedures [and whether the award was
covered by this Chapter]]].]
[6.
The entities shall publish [such information] [a
notice] [the award] [, in conformity with their
respective national legislations, ] [in the officially designated
media listed in Annex _____ (Information and Publication of the Awarding
of the Contract - no text ) ] [or in other national media]
[in at least two daily national newspapers] [in a newspaper of
national or international circulation] [which is readily accessible
to suppliers and other Parties] [within 72 days of][within
the first [3] [5] working days following] [no
later than [90] days after] [the award of the
contract. [The Parties shall endeavor to make this information
available to the public through electronic means, such as the Internet.]
[Officially designated media may be electronic or paper.]]]
[7.
The Parties shall ensure that their procuring entities maintain records of
tendering procedures relating to contracts covered by this Chapter.
Procuring entities shall maintain such records for a period of at least
three years.]
Article XXVI. Confidential
Information
[1.The
Parties and their entities shall not disclose confidential or proprietary
information in the course of a procurement.]
[2.Nothing
in this Chapter shall [impose in] [prevent]
the Parties or their entities [from withholding] [the
obligation] of [retaining] [revealing]
information under this Chapter where release might:
a) impede law enforcement;
b) prejudice the fair
competition or the legitimate commercial interests of particular
suppliers or procuring entities, including the protection of
intellectual property;
c) otherwise be contrary to
the public interest or
d) otherwise be contrary to
vital security interests.]
Article XXVII . Review and Appeal
Procedure
[1.[Each
Party shall apply procedures for legal redress, claims or complaints that
are available to any interested party and that ensure that their interests
are defended.] [To this end, each Party shall maintain
administrative or judicial bodies or procedures that can provide, at the
request of an affected supplier, review of administrative decisions that
affect government procurement covered in this Chapter].]
[2.
For the purpose of promoting fair, open and impartial procurement
procedures, each Party, consistently with its domestic legislation, shall
adopt and maintain the procedures described in the previous paragraph,
pursuant to the following:
a) allow goods suppliers and
service providers to seek legal redress [and] or enter a
challenge at any stage of the procurement process [which, for
the purposes of this article, is initiated from the moment an entity
defines the purpose of procurement and runs through to the award of
the contract];]
b) ensure that its entities
consider in a timely and impartial manner any challenge regarding
procurements covered by this Chapter; and
c) if the claim is not settled
in the administrative sphere, no goods or service supplier shall be
prevented from appealing to other bodies which are independent from
the procuring entity that is the subject of the challenge.]
[2.
Each Party shall ensure that such challenge and review procedures are
prompt, transparent and impartial and comply with due process, whereby
suppliers are given the right to be heard, to be represented and assisted
and to present any form of evidence recognized under the laws of the
Party, access to proceedings, which must be public, unless for legal
reasons, publicity is restricted, and the resolutions are made in writing,
based on law and notified to the suppliers by the media established in the
laws of the Party.]
[3. In
the event of a complaint by a supplier that there has been a breach of
this Chapter, each Party shall encourage its relevant procuring entity and
such supplier to seek resolution of the complaint through consultations.
Procuring entities shall accord impartial and timely consideration to any
such complaint, in a manner that is not prejudicial to suppliers’
participation in ongoing or future procurement activities or to suppliers’
rights to seek corrective measures under the challenge system.]
[4.
Each Party shall establish or designate at least one impartial authority,
which is independent from its procuring entities, to receive and review
supplier challenges relating to procurements covered by this Chapter and
make appropriate findings and recommendations. Such authorities shall be
authorized, pending the resolution of a challenge, to take prompt interim
measures to preserve the opportunity to correct potential breaches of this
Chapter, including the suspension of the award of a contract or the
performance of a contract already awarded.]
[5.
Each Party shall provide timely, effective, transparent, predictable and
non-discriminatory means for suppliers to challenge alleged breaches of
this Chapter, without prejudice to suppliers’ participation in ongoing or
future procurement activities. All challenge procedures shall be in
writing and made generally available.]
[6. In
the event that a challenge is initially reviewed by a body other than an
authority established or designated under paragraph ___ of this Article,
each Party shall ensure that suppliers may appeal the initial decision to
an impartial administrative or judicial authority which is separate and
independent from the procuring entity that is the subject of the
challenge.]
[7.
Each Party shall ensure that any confidential or proprietary information
that is submitted in the course of a challenge proceeding is protected in
accordance with Paragraph __ of Article ___ of this Chapter.]
[8.
Each Party shall ensure that review procedures are conducted in accordance
with the following:
a) Suppliers shall be allowed a
sufficient period of time to prepare and submit challenges, which in
no case shall be less than 10 days from the time when the basis of the
complaint became known or reasonably should have become known to the
supplier;
b) The proceedings shall be
conducted in a transparent manner, consistent with predictable,
written procedures that are readily available to all participants in
advance;
c) Procuring entities shall respond
in writing to the complaint and disclose all relevant documents to the
review body;
d) A supplier that initiates a
complaint shall be provided an opportunity to respond to the procuring
entities’ report prior to a decision being taken on the complaint; and
e) Decisions relating to supplier
challenges shall be provided in a timely fashion, in writing, with an
explanation of the basis for each decision.]
[Article XXVIII. Dispute Settlement]6
[[1.]
[Differences arising with regard to the provisions stipulated in
the Chapter on government procurement shall be resolved in accordance with
the Chapter on Dispute Settlement of the FTAA. Agreement] [,
which establishes the appropriate challenge and dispute settlement
mechanisms for appeals].]
[2.
The Chapter on Dispute Settlement of the FTAA. Agreement does not apply to
the differences which arise between the entities and the suppliers of the
Parties.]
[Article XXIX. Technical cooperation
and assistance]
[1.
The Parties shall provide each other with technical cooperation and
assistance, taking into account the specific needs of countries, 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].]
[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. Mode, scope and extent of
application shall be agreed bi-laterally among the relevant parties.]
[2.
For that purpose, the Parties shall provide information concerning the
training and orientation programs related to their government procurement
systems and nondiscriminatory access to any program they conduct. The
training and orientation programs include:]
[a)
training of public sector personnel who directly participate in
government procurement procedures;]
[b)
training of suppliers interested in taking advantage of the business
opportunities in the government procurements;]
[c)
explication and description of specific aspects of the Parties’
government procurement systems, such as their appeals mechanisms;]
[d)
information on the market opportunities of Parties’ government
procurements; and]
[e)
training in the different electronic programs used by the Parties to
process the government procurement data and provide statistics on
them.]
[3.
The developed countries of the FTAA will cooperate with developing
countries and countries with small and vulnerable economies, providing
technical and financial support in this process. Also, they will provide
technical assistance for solving problems related to government
procurement, when requested by the developing countries. Specific
obligations related to technical and financial assistance are laid out in
Annex _____ (Technical Cooperation and Assistance - no text).]
[4.
Developed Parties to this Agreement shall seek to facilitate the requests
of the small economies for technical assistance in the development and
maintenance of suitable infrastructure to ensure the easy accessibility
and availability of information in these member states. Smaller economies
will require technical assistance in ensuring that notifications issued
regarding invitations to participate in a procurement process are easily
accessible to other parties as well as among smaller economies,
particularly in light of the hardware requirement associated with the use
of electronic media.]
[Article XXX. Treatment of the
Differences in the Level of Development and Size of Economies]7
[1.
Parties shall, in the implementation 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 countries and smaller
economies, in their need to:
a) safeguard their balance of
payments position and ensure a level of reserves adequate for the
implementation of programmes for national economic development;
b) promote the establishment or
development of domestic industries, through [the use of
offsets,] exceptions to the national treatment obligations,
such as buy national policies, including the development of small
scale and cottage industries and economic development of other sector;
c) support industrial units [or
service providers,] so long as they are wholly or substantially
dependent on government procurement;
d) encourage economic
development and expansion through sub-regional arrangements.]
[2.
[Smaller economies] [countries, according to their level
of development, especially the smaller economies,] [may]
engage in joint regional bidding for the award of contracts given the
limitations of small size and limited infrastructural capability.
Recognizing that such regional bidding will require a longer period for
the preparation and submission of bids by those countries, more developed
members should facilitate, as far as possible, the full participation of
those countries in the process.]
[3.
[Smaller economies] [Countries, 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.]
[3.
Developed countries shall guarantee, for the benefit of countries with
smaller economies, a procurement quota equal to ____ of the total value of
the contracts to be awarded.]
[4. At
the end of each period of five (5) years, smaller and developing economies
shall submit a report to the Committee on Government Procurement
concerning progress toward full compliance with obligations of this
Chapter. This report shall contain inter alia general and economic
developments, technical assistance requested and received from the
parties, trade balances, and actual performance within the framework of
this Chapter. In accordance with their developmental needs, smaller and
developing economies may petition the Committee on Government Procurement
for continued application of these special measures. The Committee on
Government Procurement and the petitioning party(ies) shall mutually agree
on periods of extension in this regard.]
[5.
Notwithstanding the provisions of paragraph 4, 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:
a) the addressing of balance of payments concerns
b) import quotas
c) additional exclusions
d) margins of preference
e) higher thresholds
f) higher percentage offsets.]
[Article XXXI . Administration of
the Chapter]8
[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.]
[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 ___ (Entities) into the scope of this Chapter;]
[e)
promote the development and implementation of the [electronic]
information and intermediation system referred to in Article ___ ;]
[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
___; and]
[i)
promote opportunities for micro-enterprises and small- and
medium-scale enterprises, among other activities [of Parties].]
[3.
The regulation and specific functions of the Committee on Government
Procurement is in Annex --- (Administration of the [Agreement]
[Chapter.] - no text ) to this Chapter.
]
[4.
The committee may set up working groups or other auxiliary bodies to help
in carrying out its assigned tasks.]
[5.
The Committee on Government Procurement shall [undertake]
the necessary steps to create within the Hemisphere statistical systems
and an information platform which would allow the systematization of the
information on Government [acquisitions and] procurement,
with sufficient transparency and without discrimination.]
[Article XXXII . [Amendments]
[Modification to coverage]]
[1.A
Party may seek make technical rectifications of a purely formal nature and
minor amendments to its Schedules to Annexes to this Chapter, provided
that it notifies such rectifications or amendments to the other Parties.
Where no other Party objects to the proposed rectification or amendment
within [ ] days of the notification, the rectification or amendment
may enter into force immediately.]
[2.Where
a Party objects to a proposed rectification or amendment, it may seek
additional information and, if necessary, consultations in accordance with
paragraphs ___ and ___]
[3. No
Party may withdraw entities covered by this Chapter with the intention of
avoiding compliance with the obligations herein].
[4.
Where an entity covered by this Chapter is withdrawn, any Party may
request the initiation of negotiations with a view to obtaining
compensation for the purpose of restoring balance to the coverage.]
[5.
The Parties shall approve these agreements, in accordance with the
terms the Article ___ Commission ____].
[Article XXXIII . Privatization]
[1. 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 the
State’s loses its effective control over the entity or if such control is
removed from the State]. [In these cases, [another]
none Party may [not] demand compensation of any kind.]]
[2.
Privatized entities shall not be subject to the application of this
Chapter.]
[3.
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.]
[4.
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.]
[5.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.
a) Where, 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) Where a mutually acceptable
solution is not reached during consultations, the Parties shall have
recourse to the procedures under Chapter ____ (Dispute Settlement)
of this Agreement.]
[6. No
Party shall modify the structure of its entities to avoid the obligations
of this Chapter.]
----------------------------------------------------------
1 The NGGP agreed to discuss
later where would be the best location of the following paragraph: [ In
those cases where the entities of a Party procures the development of a
technology, or in those instances in which such development results from
the execution of the contract, the procuring entity is entitled to
technology transfer and to intellectual property rights.]
2
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 TCI.
3
The NGGP agreed to defer the discussion on the
designation of contact points.
4 The NGGP agreed that the
subparagraphs initially incorporated in this Article, regarding national
security, acquisitions for military purposes, procurement among public
entities, Agreements concluded with other States or with subjects of
international public law, the acquisition of goods and services and the
execution of public works financed through loans from governments,
international organizations, external cooperation agreements or which are
based on international treaties, agreements or conventions, will be
analyzed under the Article addressing Exceptions.
5 The NGGP agreed that the
second paragraph initially incorporated in this Article, regarding the
obligation of entities to prepare a written report on every contract
awarded, will be analyzed in a general Article regarding provision of
information.
6 The NGGP agreed to defer
the analysis of the article on dispute settlement to see the discussion on
the issue in the NGDS.
7 The NGGP agreed that specific measures that take
into account the differences in the level of development and size of
economies and relate to market access negotiations should be included in
the revised version of document w/114 on Methods and Modalities for Market
Access Negotiations.
8 The NGGP agreed to defer the analysis of this
article.
|