Full text of EVFTA in MS Word format
Full text of the Annexes of EVFTA in MS Word format

CHAPTER 9: GOVERNMENT PROCUREMENT

ARTICLE 9.1

Definitions

For the purposes of this Chapter:

(a)     "commercial goods or services" means goods or services of a type generally sold or offered for sale in the commercial marketplace to, and customarily purchased by, non-governmental buyers for non-governmental purposes;

(b)     "construction service" means a service that has as its objective the realisation by whatever means of civil or building works based on Division 51 of the United Nations Provisional Central Product Classification (CPC);

(c)     "electronic auction" means an iterative process that involves the use of electronic means for the presentation by suppliers of either new prices, or new values for quantifiable non-price elements of the tender related to the evaluation criteria, or both, resulting in a ranking or re-ranking of tenders;

(d)     "government procurement" means the process by which a procuring entity as defined in subparagraph (l) obtains the use of or acquires goods or services, or any combination thereof, for governmental purposes and not with a view to commercial sale or resale or use in the production or supply of goods or services for commercial sale or resale;

(e)     "in writing" or "written" means any worded or numbered expression that can be read, reproduced and later communicated, and may include electronically transmitted and stored information;

(f)     "limited tendering" means a procurement method whereby the procuring entity contacts a supplier or suppliers of its choice;

(g)     "measure" means any law, regulation, administrative guidance or practice, or any action of a procuring entity relating to a covered procurement;

(h)     "multi-use list" means a list of suppliers that a procuring entity has determined satisfy the conditions for participation in that list, and that the procuring entity intends to use more than once;

(i)      "notice of intended procurement" means a notice published by a procuring entity inviting interested suppliers to submit a request for participation, a tender, or both;

(j)      "offset" means any condition or undertaking that encourages local development or improves a Party's balance-of-payments accounts, such as the use of domestic content, of domestic suppliers, the licensing and transfer of technology, investment, counter-trade and similar action or requirement;

(k)     "open tendering" means a procurement method whereby all interested suppliers may submit a tender;

(l)     "procuring entity" means an entity listed in each Party's Annex to this Chapter;

(m)    "publish" means to disseminate information in paper format or by electronic means that is distributed widely and is readily accessible to the general public;

(n)     "qualified supplier" means a supplier that a procuring entity recognises as having satisfied the conditions for participation;

(o)     "selective tendering" means a procurement method whereby only qualified suppliers are invited by the procuring entity to submit a tender;

(p)    "services" includes construction services, unless otherwise specified;

(q)     "supplier" means a person or group of persons that provides or could provide goods or services to a procuring entity; and

(r)      "technical specification" means a tendering requirement that:

(a)     sets out the characteristics of:

(i)      goods to be procured, including quality, performance, safety and dimensions, or the processes and methods for their production; or

(ii)     services to be procured, including quality, performance and safety or the processes or methods for their provision; or

(b)     addresses terminology, symbols, packaging, marking or labelling requirements, as they apply to a good or service.

ARTICLE 9.2

Scope and Coverage

1.         This Chapter applies to any measure regarding covered procurement, whether or not it is conducted exclusively or partially by electronic means.

2.         For the purposes of this Chapter, "covered procurement" means government procurement:

(a)     of goods, services, or any combination thereof, as specified in Annexes 9-A (Coverage of Government Procurement for the Union) and 9-B (Coverage of Government Procurement for Viet Nam);

(b)     by any contractual means, including purchase, lease, and rental, with or without an option to buy;

(c)     for which the value, as estimated in accordance with paragraphs 6 and 7, equals or exceeds the relevant threshold specified in each Party's Annex to this Chapter, at the time of publication of a notice in accordance with Article 9.6 (Notices); and

(d)     that is not otherwise excluded from coverage in paragraph 3, or each Party's Annex to this Chapter, or by the effect of any other relevant parts of this Agreement.

3.         Except where provided otherwise in each Party's Annex to this Chapter, this Chapter does not apply to:

(a)     the acquisition or rental of land, existing buildings or other immovable property or the rights thereon;

(b)    non-contractual agreements or any form of assistance that a Party, including its procuring entities, provides, including cooperative agreements, grants, subsidies, loans, equity infusions, guarantees, fiscal incentives, and contributions in kind;

(c)     the procurement or acquisition of fiscal agency or depository services, liquidation and management services for regulated financial institutions or services related to the sale, redemption and distribution of public debt, including loans and government bonds, notes and other securities;

(d)    public employment contracts; and

(e)     procurement conducted:

(i)      for the specific purpose of providing international assistance, including development aid;

(ii)     under the particular procedure or condition of an international organisation or funded by international or foreign grants, loans or other assistance where the recipient Party, including its procuring entities, is bound to apply particular procedures or conditions imposed by the international organisation or other donors for the benefit of their international or foreign grants, loans or other assistance. Where the procedures or conditions of the international organisation or donor do not restrict the participation of suppliers, the procurement shall be subject to paragraphs 1 and 2 of Article 9.4 (General Principles); or

(iii)    under the particular procedure or condition of an international agreement relating to the stationing of troops or relating to the joint implementation by the signatory countries of a project.

4.         Annex 9-A (Coverage of Government Procurement for the Union) and Annex 9-B (Coverage of Government Procurement for Viet Nam) specify in its Sections for each Party the following information:

(a)     in Section A, the central government entities whose procurement is covered by this Chapter;

(b)    in Section B, the sub-central government entities whose procurement is covered by this Chapter;

(c)     in Section C, other entities whose procurement is covered by this Chapter; (d)    in Section D, the goods covered by this Chapter;

(e)     in Section E, the services, other than construction services, covered by this Chapter; (f)     in Section F, the construction services covered by this Chapter;

(g)    in Section G, any general notes; and

(h)    in Section H, the means for publishing the procurement information.

5.         Transitional measures for Viet Nam for the application of this Chapter are set out in Section I (Transitional Measures) of Annex 9-B (Coverage of Government Procurement for Viet Nam). 

6.         If the domestic legislation of a Party allows a covered procurement to be carried out on behalf of the procuring entity by other entities or persons whose procurement is not covered with respect to the goods and services concerned, the provisions of this Chapter equally apply.

Valuation

7.         In estimating the value of a procurement for the purpose of ascertaining whether it is a covered procurement, a procuring entity shall:

(a)     neither divide a procurement into separate procurements nor select or use a particular valuation method for estimating the value of a procurement with the intention of totally or partially excluding it from the application of this Chapter; and

(b)     include the estimated maximum total value of the procurement over its entire duration, whether this procurement is awarded to one or more suppliers at the same time or over a given period of time, taking into account all forms of remuneration, including:

(i)     premiums, fees, commissions and interest; and

(ii)    the total value of any option clause.

8.         For recurring contracts that consist, due to an individual requirement of the procurement, in awarding more than one contract, or in awarding contracts in separate parts, the calculation of the estimated maximum total value shall be based on:

(a)     the value of recurring contracts of the same type of good or service awarded during the preceding 12 months or the procuring entity's preceding fiscal year, adjusted, where possible, to take into account anticipated changes in the quantity or value of the good or service being procured over the following 12 months; or

(b)     the estimated value of recurring contracts of the same type of good or service to be awarded during the 12 months following the initial contract award or the procuring entity's fiscal year.

ARTICLE 9.3

Security and General Exceptions

1.         Nothing in this Agreement shall be construed as preventing a Party from taking any action or not disclosing any information that 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 defence purposes.

2.         Subject to the requirement that such measures are not applied in a manner which would constitute a disguised restriction on international trade, nothing in this Agreement shall be construed as preventing a Party from imposing or enforcing 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 persons with disabilities, philanthropic institutions, non- profit institutions carrying out philanthropic activities or prison labour.

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