Common use of Additional Disciplines Clause in Contracts

Additional Disciplines. The Parties shall apply to both the procurements covered through their respective Annexes to Appendix I to the WTO Government Procurement Agreement and to those covered through Annex XI to this Agreement, the following additional disciplines: 1. Each Party shall ensure that all the notices of intended procurement are made directly accessible by electronic means free of charge through a single point of access on the internet. In addition, the notices may also be published in an appropriate paper medium. Any such medium shall be widely disseminated and such notices shall remain readily accessible to the public, at least until the expiration of the time period indicated in the notice. 2. Each Party shall ensure that the measures taken concerning the review procedures specified in Article XVII of the WTO Government Procurement Agreement provide the necessary powers to: (a) take, at the earliest opportunity and by way of interlocutory procedures, interim measures with the aim of correcting the alleged infringement or preventing further damage to the interests concerned, including measures to suspend or to ensure the suspension of the procedure for the award of a public procurement contract or the implementation of any decision taken by the contracting authority; (b) either set aside or ensure the setting aside of decisions taken unlawfully, including the removal of discriminatory technical, economic or financial specifications in the publication of intended or planned procurement, the contract documents or in any other document relating to the contract award procedure; and (c) award damages to persons harmed by an infringement. 3. Inthe case of the review of an award decision, each Party shall ensure that the contracting authority cannot conclude the contract before the review body has made a decision on the application either for interim measures or for review. The suspension shall end no earlier than the expiry of the standstill period referred to in paragraph 6. 4. Each Party shall ensure that decisions taken by bodies responsible for review procedures can be effectively enforced. 5. Members of independent review bodies shall not be representatives of any contracting authorities. With regard to bodies responsible for review procedures which are not judicial in character each Party shall ensure that: (a) written reasons for their decisions are always be given; (b) that any allegedly illegal measure taken by the independent review body or any alleged defect in the exercise of the powers conferred on it can be the subject of judicial review or review by another independent body which is a court or tribunal and independent of both the contracting authority and the review body; (c) the members of such an independent body are appointed and leave office under the same conditions as members of the judiciary as regards the authority responsible for their appointment, their period of office, and their removal; (d) at least the President of such an independent body has the same legal and professional qualifications as members of the judiciary; and (e) the independent body takes its decisions following a procedure in which both sides are heard, and that these decisions are, by means determined by each Party, legally binding. 6. The contracting authority may not conclude a contract following the decision to award a contract falling within the scope of this Chapter before: (a) the expiry of a standstill period of at least 10 calendar days with effect from the day following the date on which the contract award decision is sent to the tenderers and candidates concerned if fax or electronic means are used; or (b) before the expiry of a standstill period of either at least 15 calendar days with effect from the day following the date on which the contract award decision is sent to the tenderers and candidates concerned or at least 10 calendar days with effect from the day following the date of the receipt of the contract award decision, if other means of communication are used. Alternatively, a Party may provide that the standstill period is triggered by the publication of the award decision in an electronic media free of charge, pursuant to Article XVI.2 WTO Government Procurement Agreement. Tenderers shall be deemed to be concerned if they have not yet been definitively excluded. The exclusion is deemed definitive if it has been notified to the tenderers concerned and either has been considered lawful by an independent review body or can no longer be subject to a review procedure. Candidates shall be deemed to be concerned if the contracting authority has not made information about the rejection of their application available to the tenderers concerned prior to the notification of the contract award decision. 7. A Party may provide that the standstill periods referred to in points (a) and (b) of the first subparagraph of paragraph 6 do not apply in the following cases: (a) if the only tenderer concerned within the meaning of the third subparagraph of paragraph 6 is the one who is awarded the contract and there are no other candidates concerned; (b) in the case of a contract based on a framework agreement; and