Common use of Tendering Procedures Clause in Contracts

Tendering Procedures. 1. Procuring entities shall award their contracts in a manner consistent with this Chapter, using open, selective, or limited tendering. Open Tendering 2. A procuring entity shall award contracts by means of open tendering except where paragraphs 16.9.3 through 5 apply. Selective Tendering 3. Where a Party's law allows the use of selective tendering, a procuring entity shall, for each intended procurement: (a) publish a notice inviting suppliers to apply for participation in the procurement sufficiently in advance to provide interested suppliers with time to prepare and submit applications and for the procuring entity to evaluate and make its determinations based on such applications; and (b) allow all domestic suppliers and suppliers of the other Party that the procuring entity has determined satisfy the conditions for participation to submit a tender, unless the procuring entity has stated in the notice of intended procurement or, where publicly available, the tender documentation a limitation on the number of suppliers that will be permitted to tender and the criteria for such a limitation. Limited Tendering 4. Provided that it does not use this provision for purposes of avoiding competition among suppliers or in a manner that discriminates against suppliers of the other Party or protects domestic suppliers, a procuring entity may use limited tendering only under the following circumstances: (a) provided that the requirements of the tender documentation are not substantially modified, where: (i) no tenders were submitted, or no suppliers requested participation; (ii) no tenders that conform to the essential requirements of the tender documentation were submitted; (iii) no suppliers satisfied the conditions for participation; or (iv) the tenders submitted have been collusive; (b) where the goods or services can be supplied only by a particular supplier and no reasonable alternative or substitute goods or services exist for any of the following reasons: (i) the requirement is for a work of art; (ii) the protection of patents, copyrights, or other exclusive rights; or (iii) due to an absence of competition for technical reasons; (c) for additional deliveries by the original supplier of goods or services that were not included in the initial procurement where a change of supplier for such additional goods or services: (i) can not be made for economic or technical reasons such as requirements of interchangeability or interoperability with existing equipment, software, services, or installations procured under the initial procurement; and (ii) would cause significant inconvenience or substantial duplication of costs for the procuring entity; (d) insofar as is strictly necessary where, for reasons of extreme urgency brought about by events unforeseeable by the procuring entity, the goods or services can not be obtained in time using open tendering or selective tendering, and the use of such method would result in serious injury to the procuring entity; (e) for goods purchased on a commodity market; (f) where a procuring entity procures a prototype or a first good or service which is developed at its request in the course of, and for, a particular contract for research, experiment, study, or original development; (g) for purchases made under exceptionally advantageous conditions that only arise in the very short term in the case of unusual disposals such as those arising from liquidation, receivership, or bankruptcy, but not for routine purchases from regular suppliers; or (h) where a contract is awarded to a winner of a design contest provided that: (i) the contest has been organized in a manner that is consistent with the principles of this Chapter, in particular related to the publication of a notice of intended procurement; and (ii) the participants are judged by an independent jury with a view to a design contract being awarded to a winner. 5. A procuring entity shall prepare a report in writing on each contract awarded under paragraph 4. Such report shall include the name of the procuring entity, the value and kind of goods or services procured, and a statement indicating the circumstances and conditions described in paragraph 4 that justified the use of limited tendering. 6. If, in tendering procedures, a procuring entity allows tenders to be submitted in several languages, one of those languages shall be English.