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ARTICLES

LEGAL RESOURSES

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    • Article 1016: Limited Tendering Procedures

    1. An entity of a Party may, in the circumstances and subject to the conditions set out in paragraph 2, use limited tendering procedures and thus derogate from Articles 1008 through 1015 (TLCAN: Art. 1008) (TLCAN: Art. 1009) (TLCAN: Art. 1010) (TLCAN: Art. 1011) (TLCAN: Art. 1012) (TLCAN: Art. 1013) (TLCAN: Art. 1014) (TLCAN: Art. 1015), provided that such limited tendering procedures are not used with a view to avoiding maximum possible competition or in a manner that would constitute a means of discrimination between suppliers of the other Parties or protection of domestic suppliers.

    2. An entity may use limited tendering procedures in the following circumstances and subject to the following conditions, as applicable:

  • In the absence of tenders in response to an open or selective call for tenders, or where the tenders submitted either have resulted from collusion or do not conform to the essential requirements of the tender documentation, or where the tenders submitted come from suppliers that do not comply with the conditions for participation provided for in accordance with this Chapter, on condition that the requirements of the initial procurement are not substantially modified in the contract as awarded;

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  • Where, for works of art, or for reasons connected with the protection of patents, copyrights or other exclusive rights, or proprietary information or where there is an absence of competition for technical reasons, the goods or services can be supplied only by a particular supplier and no reasonable alternative or substitute exists;

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  • In so far as is strictly necessary where, for reasons of extreme urgency brought about by events unforeseeable by the entity, the goods or services could not be obtained in time by means of open or selective tendering procedures;

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  • For additional deliveries by the original supplier that are intended either as replacement parts or continuing services for existing supplies, services or installations, or as the extension of existing supplies, services or installations, where a change of supplier would compel the entity to procure equipment or services not meeting requirements of interchangeability with already existing equipment or services, including software to the extent that the initial procurement of the software was covered by this Chapter;

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  • Where an entity procures a prototype or a first good or service that is developed at its request in the course of and for a particular contract for research, experiment, study or original development. Where such contracts have been fulfilled, subsequent procurement of goods or services shall be subject to Articles 1008 through 1015 (TLCAN: Art. 1008) (TLCAN: Art. 1009) (TLCAN: Art. 1010) (TLCAN: Art. 1011) (TLCAN: Art. 1012) (TLCAN: Art. 1013) (TLCAN: Art. 1014) (TLCAN: Art. 1015). Original development of a first good may include limited production in order to incorporate the results of field testing and to demonstrate that the good is suitable for production in quantity to acceptable quality standards, but does not include quantity production to establish commercial viability or to recover research and development costs;

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  • For goods purchased on a commodity market;

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  • 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;

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  • For a contract to be awarded to the winner of an architectural design contest, on condition that the contest is

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  • 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,

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  • Organized with a view to awarding the design contract to the winner, and

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  • To be judged by an independent jury; and

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  • 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 economic disruption or similarly be contrary to the public interest.

    • 3. An entity shall prepare a report in writing on each contract awarded by it under paragraph 2. Each report shall contain the name of the procuring entity, indicate the value and kind of goods or services procured, the name of the country of origin, and a statement indicating the circumstances and conditions described in paragraph 2 that justified the use of limited tendering. The entity shall retain each report. They shall remain at the disposal of the competent authorities of the Party for use, if required, under Article 1017 (TLCAN: Art. 1017), Article 1019 (TLCAN: Art. 1019) or Chapter Twenty (Institutional Arrangements and Dispute Settlement Procedures).