**1.** The Parties shall ensure that the tendering procedures of their entities are consistent with the provisions below. Open tendering procedures, for the purposes of this Agreement, are those procedures under which all interested suppliers may submit a tender. Selective tendering procedures, for the purposes of this Agreement, are those procedures under which, consistent with paragraph 8 and other relevant provisions of this Article, those suppliers invited to do so by the entity may submit a tender. Single tendering procedures, for the purposes of this Agreement, are those procedures where the entity contacts suppliers individually, only under the conditions specified in paragraph is below.
**2.** Entities, in the process of qualifying suppliers, shall not discriminate among foreign suppliers or between domestic and foreign suppliers. Qualification procedures shall be consistent with the following:
any conditions for participation in tendering procedures shall be published in adequate time to enable interested suppliers to initiate and, to the extent that it is compatible with efficient operation of the procurement process, complete the qualification procedures;
any conditions for participation in tendering procedures shall be limited to those which are essential to ensure the firm’s capability to fulfil the contract in question. Any conditions for participation required from suppliers, including financial guarantees, technical qualifications and information necessary for establishing the financial, commercial and technical capacity of suppliers, as well as the verification of qualifications, shall be no less favourable to foreign suppliers than to domestic suppliers and shall not discriminate among foreign suppliers. The financial, comercial and technical capacity of a supplier shall be judged both on the basis of that suppliers global business activity as well as its activity in the territory of the procuring entity, taking due account of the legal relationship between the supply organizations;
the process of, and the time required for, qualifying suppliers shall not be used in order to keep foreign suppliers off a suppliers’ list or from being considered for a particular proposed procurement. Entities shall recognize as qualified suppliers such domestic or foreign suppliers who meet the conditions for participation in a particular proposed procurement. Suppliers requesting to participate in a particular proposed procurement who may not yet be qualified shall also be considered, provided there is sufficient time to complete the qualification procedure;
entities maintaining permanent lists of qualified suppliers shall ensure that suppliers may apply for qualification at any time; and that all qualified suppliers so requesting are included in the lists within a reasonably short time;
any supplier having requested to become a qualified supplier shall be advised by the entities concerned of the decision in this regard. Qualified suppliers included on permanent lists by entities shall also be notified of the termination of any such lists or of their removal from them;
the Parties shall ensure that
each entity and its constituent parts follow a single qualification procedure, except in cases of duly substantiated need for different procedures;
efforts be made to minimize differences in qualification procedures between entities;
nothing in sub-paragraphs (a) to (f) above shall preclude the exclusion of any supplier on grounds such as bankruptcy or false declarations, provided that such an action is consistent with the national treatment and non-discrimination provisions of this Agreement.
**3.** Entities shall not provide to any potential supplier information with regard to a specific procurement in a manner which would have the effect of precluding competition.
**4.** Entities shall publish a notice of each proposed procurement in the appropriate publication listed in Annex II 1) [Red: De lijst is niet opgenomen. De lijst ligt ter inzage bij het Ministerie van Economische Zaken, Directoraat-Generaal voor de Buitenlandse Economische Betrekkingen, Hoofdafdeling Handelspolitiek, alsmede bij de parlementaire documentatiedienst van de Tweede Kamer en bij de Staten van Aruba te Oranjestad.]. Such notice shall constitute an invitation to participate in either open or selective tendering procedures.
**5.** Each notice of proposed procurement shall contain the following information:
the nature and quantity, including any options for additional quantities, of the products to be supplied and, if possible, an estimate of the timing when such options may be exercised; in the case of recurring contracts the nature and quantity and, if possible, an estimate of the timing of the subsequent tender notices for the products to be procured;
whether the procedure is open or selective;
any delivery date;
the address and final date for submitting an application to be invited to tender or for qualifying for the suppliers’ lists, or for receiving tenders, as well as the language or languages in which they must be submitted;
the address of the entity awarding the contract and providing any information necessary for obtaining specifications and other documents;
any economic and technical requirements, financial guarantees and information required from suppliers;
the amount and terms of payment of any sum payable for the tender documentation;
whether the entity is inviting offers for purchase, lease, rental or hire-purchase, or more than one of these methods.
The entity shall publish in one of the official languages of the GATT a summary of the notice of proposed procurement containing at least the following:
subject matter of the contract;
time-limits set for the submission of tenders or an application to be invited to tender; and
addresses from which documents relating to the contracts may be requested.
**6.** To ensure optimum effective international competition under selective tendering procedures, entities shall, for each proposed procurement, invite tenders from the maximum number of domestic and foreign suppliers, consistent with the efficient operation of the procurement system. They shall select the suppliers to participate in the procedure in a fair and non-discriminatory manner.
**7.** In the case of selective tendering procedures, entities maintaining permanent lists of qualified suppliers shall publish annually in one of the publications listed in Annex III 1) [Red: De lijst is niet opgenomen. De lijst ligt ter inzage bij het Ministerie van Economische Zaken, Directoraat-Generaal voor de Buitenlandse Economische Betrekkingen, Hoofdafdeling Handelspolitiek, alsmede bij de parlementaire documentatiedienst van de Tweede Kamer en bij de Staten van Aruba te Oranjestad.], a notice of the following:
the enumeration of the lists maintained, including their headings, in relation to the products or categories of products to be procured through the lists;
the conditions to be filled by potential suppliers in view of their inscription on those lists and the methods according to which each of those conditions be verified by the entity concerned;
the period of validity of the lists, and the formalities for their renewal.
Entities maintaining permanent lists of qualified suppliers may select suppliers to be invited to tender from among those listed. Any selection shall allow for equitable opportunities for suppliers on the lists,
If, after publication of the notice under paragraph 4 above, a supplier not yet qualified requests to participate in a particular tender, the entity shall promptly start the procedure of qualification.
**8.** Suppliers requesting to participate in a particular proposed procurement shall be permitted to submit a tender and be considered provided, in the case of those not yet qualified, there is sufficient time to complete the qualification procedure under paragraphs 2-7 of this Article. The number of additional suppliers permitted to participate shall be limited only by the efficient operation of the procurement system.
**9.** If after publication of a notice of a proposed procurement but before the time set for opening or receipt of tenders as specified in the notices or the tender documentation, it becomes necessary to amend or re-issue the notice, the amendment or the re-issued notice shall be given the same circulation as the original documents upon which the amendment is based. Any significant information given to one supplier with respect to a particular proposed procurement shall be given simultaneously to all other suppliers concerned in adequate time to permit the suppliers to consider such information and to respond to it.
**10.** Any prescribed time-limit shall be adequate to allow foreign as well as domestic suppliers to prepare and submit tenders before the closing of the tendering procedures. In determining any such time-limit, entities shall, consistent with their own reasonable needs, take into account such factors as the complexity of the proposed procurement, the extent of sub-contracting anticipated, and the normal time for transmitting tenders by mail from foreign as well as domestic points.
Consistent with the entity’s own reasonable needs, any delivery date shall take into account such factors as the complexity of the proposed procurement, the extent of sub-contracting anticipated, and the realistic time required for production, de-stocking and transport of goods from the points of supply.
**11.** In open procedures, the period for the receipt of tenders shall in no case be less than forty days from the date of publication referred to in paragraph 4 of this Article.
In selective procedures not involving the use of a permanent list of qualified suppliers, the period for submitting an application to be invited to tender shall in no case be less than twenty-five days from the date of publication referred to in paragraph 4 of this Article; the period for receipt of tenders shall in no case be less than forty days from the date of issuance of the invitation to tender.
In selective procedures involving the use of a permanent list of qualified suppliers, the period for receipt of tenders shall in no case be less than forty days from the date of the initial issuance of invitations to tender. If the date of initial issuance of invitations to tender does not coincide with the date of the publication referred to in paragraph 4 of this Article, there shall in no case be less than forty days between these two dates.
The periods referred to in (a), (b) and (c) above may be reduced in the case of the second or subsequent publications dealing with contracts of a recurring nature within the meaning of paragraph 5 of this Article. In this case, the period for the receipt of tenders shall in no case be less than twenty-five days. The second or subsequent publication should include a reference to permit the identification of the first publication.
The periods referred to in (a), (b), (c) and (d) above may be reduced where a state of urgency duly substantiated by the entity renders impracticable the periods in question but shall in no case be less than ten days from the date of the publication referred to in paragraph 4 of this Article.
The Parties shall ensure that their entities shall take due account of publication delays when setting the final date for receipt of tenders or of applications to be invited to tender.
**12.** If, in tendering procedures, an entity allows tenders to be submitted in several languages, one of those languages shall be one of the official languages of the GATT.
**13.** Tender documentation provided to suppliers shall contain all information necessary to permit them to submit responsive tenders, including information required to be published in the notice of proposed procurement, except for paragraph 5 (g) of this Article, and the following:
the address of the entity to which tenders should be sent;
the address where requests for supplementary information should be sent;
the language or languages in which tenders and tendering documents must be submitted;
the closing date and time for receipt of tenders and the length of time during which any tender should be open for acceptance;
the persons authorized to be present at the opening of tenders and the date, time and place of this opening;
any economic and technical requirement, financial guarantees and information or documents required from suppliers;
a complete description of the products required or of any requirements including technical specifications, conformity certification to be fulfilled by the products, necessary plans, drawings and instructional materials;
the criteria for 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 foreign products, customs duties and other import charges, taxes and currency of payment;
the terms of payment;
any other terms or conditions.
**14.** In open procedures, entities shall forward the tender documentation at the request of any supplier participating in the procedure, and shall reply promptly to any reasonable request for explanations relating thereto.
In selective procedures, entities shall forward the tender documentation at the request of any supplier requesting to participate and shall reply promptly to any reasonable request for explanations relating thereto.
Entities shall reply promptly to any reasonable request for relevant information submitted by a supplier participating in the tendering procedure, on condition that such information does not give that supplier an advantage over its competitors in the procedure for the award of the contract.
**15.** The submission, receipt and opening of tenders and awarding of contracts shall be consistent with the following:
tenders shall normally be submitted in writing directly or by mail. If tenders by telex, telegram or telecopy 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 tenderer and a statement that the tenderer agrees to all the terms, conditions and provisions of the invitation to tender. The tender must be confirmed promptly by letter or by the despatch of a signed copy of the telex, telegram or telecopy.Tenders presented by telephone shall not be permitted. The content of the telex, telegram or telecopy shall prevail where there is a difference of conflict between that content and any documentation received after the time-limit; requests to participate in selective tendering procedures may be submitted by telex, telegram or telecopy;
the opportunities that may be given to tenderers to correct unintentional errors between the opening of tenders and the awarding of the contract shall not be permitted to give rise to any discriminatory practice;
a supplier shall not be penalized if a tender is received in the office designated in the tender documentation after the time specified because of delay due solely to mishandling on the part of the entity. Tenders may also be considered in other exceptional circumstances if the procedures of the entity concerned so provide;
all tenders solicited under open and selective procedures by entities shall be received and opened under procedures and conditions guaranteeing the regularity of the openings as well as the availability of information from the openings. The receipt and opening of tenders shall also be consistent with the national treatment and non-discrimination provisions of this Agreement. To this effect, and in connexion with open procedures, entities shall establish provisions for the opening of tenders in the presence of either tenderers or their representatives, or an appropriate and impartial witness not connected with the procurement process. A report on the opening of tenders shall be drawn up in writing. This report shall remain with the entities concerned at the disposal of the government authorities responsible for the entity in order that it may be used if required under the procedures of Articles VI and VII of this Agreement;
to be considered for award, a tender must, at the time of opening, conform to the essential requirements of the notices or tender documentation and be from suppliers which comply with the conditions for participation. If an entity has received a tender abnormally lower than other tenders submitted, it may enquire with the tenderer to ensure that it can comply with the conditions of participation and be capable of fulfilling the terms of the contract;
unless in the public interest an entity decided not to issue the contract, the entity shall make the award to the tenderer who has been determined to be fully capable of undertaking the contract and whose tender, whether for domestic or foreign products, is either the lowest tender or the tender which in terms of the specific evaluation criteria set forth in the notices or tender documentation is determined to be the most advantageous;
if it appears from evaluation that no one tender is obviously the most advantageous in terms of the specific evaluation criteria set forth in the notices or tender documentation, the entity shall, in any subsequent negotiations, give equal consideration and treatment to all tenders within the competitive range;
entities should normally refrain from awarding contracts on the condition that the supplier provide offset procurement opportunities or similar conditions. In the limited number of cases where such requisites are part of a contract, Parties concerned shall limit the offset to a reasonable proportion within the contract value and shall not favour suppliers from one Party over suppliers from any other Party. Licensing of technology should not normally be used as a condition of award but instances where it is required should be as infrequent as possible and suppliers from one Party shall not be favoured over suppliers from any other Party. In the limited number of cases where offset procurement opportunities or similar conditions are required, these requirements shall be included in the notice of proposed procurement and tender documentation;
option clauses shall not be used in a manner which circumvents the provisions of the Agreement;
awards shall be made in accordance with the criteria and essential requirements specified in the tender documentation.
**16.** The provisions of paragraphs 1-15 above governing open and selective tendering procedures need not apply in the following conditions, provided that single tendering is not used with a view to avoiding maximum possible competition or in a manner which would constitute a means of discrimination among foreign suppliers or protection to domestic producers:
in the absence of tenders in response to an open or selective tender, or when the tenders submitted have been either collusive or do not conform to the essential requirements in the tender, or from suppliers who do not comply with the conditions for participation provided for in accordance with this Agreement, on condition, however, that the requirements of the initial tender are not sub-stantially modified in the contract as awarded;
when, for works of art or for reasons connected with protection of exclusive rights, such as patents or copyrights, the products can be supplied only by a particular supplier and no reasonable alternative or substitute exists;
insofar as is strictly necessary when, for reasons of extreme urgency brought about by events unforeseeable by the entity, the products could not be obtained in time by means of open or selective tendering procedures;
for additional deliveries by the original supplier which are intended either as parts replacement for existing supplies or installations, or as the extension of existing supplies or installations where a change of supplier would compel the entity to procure equipment not meeting requirements of interchangeability with already existing equipment4) It is the understanding that “existing equipment” referred to in Article V:16 (d) includes software to the extent that the initial procurement of the software was covered by the Agreement..
when an entity procures prototypes or a first product which are developed 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, subsequent procurements of products shall be subject to paragraphs 1-15 of this Article 1) Original development of a first product may include limited production in order to incorporate the results of field testing and to demonstrate that the product is suitable for production in quantity to acceptable quality standards. It does not extend to quantity production to establish commercial viability or to recover research and development costs..
**17.** Entities shall prepare a report in writing on each contract awarded under the provisions of paragraph 16 of this Article. Each report shall contain the name of the procuring entity, value and kind of goods procured, country of origin, and a statement of the conditions in paragraph 16 of this Article which prevailed. This report shall remain with the entities concerned at the disposal of the government authorities responsible for the entity in order that it may be used if required under the procedures of Articles VI and VII of this Agreement.
Abusievelijk is voor het eerste lid een wijziging geformuleerd die niet kan worden doorgevoerd.
Artikel V
Tendering Procedures
Onderdeel van Overeenkomst inzake overheidsopdrachten· Financieel en economisch recht
Deze tekst geldt sinds 14 februari 1988