Australia-United States Free Trade Agreement

Chapter Fifteen - Government Procurement

Article 15.1 : Scope and Coverage

Application of Chapter

1. This Chapter applies to any measure regarding covered procurement.

2. For the purposes of this Chapter, covered procurement means a procurement of goods, services, or both:

(a) by any contractual means, including purchase, rental, or lease, with or without an option to buy, build-operate-transfer contracts, and public works concessions contracts;

(b) for which the value, as estimated in accordance with paragraphs 6, 7, or 8, as appropriate, equals or exceeds the relevant threshold specified in Annex 15-A;

(c) that is conducted by a procuring entity; and

(d) is not excluded from coverage by this Agreement.

3. This Chapter does not apply to:

(a) non-contractual agreements or any form of assistance that a Party or a government enterprise provides, including grants, loans, equity infusions, fiscal incentives, subsidies, guarantees, cooperative agreements, and sponsorship arrangements;

(b) procurement of goods and services by a Party from its own entities and provision of goods or services by or between a procuring entity of a Party and a regional or local government of that Party;

(c) purchases funded by international grants, loans, or other assistance, where the provision of such assistance is subject to conditions inconsistent with this Chapter;

(d) purchases funded by grants and sponsorship payments from persons not listed in Annex 15-A;

(e) procurement for the direct purpose of providing foreign assistance;

(f) procurement of research and development services;

(g) procurement of goods and services (including construction) outside the territory of the procuring Party, for consumption outside the territory of the procuring Party; and

(h) acquisition of fiscal agency or depository services, liquidation and management services for regulated financial institutions, and sale and distribution services for government debt.

4. (a) The Parties acknowledge and reaffirm the commitments made in the Memorandum of Agreement Between the Government of Australia and the Government of the United States Concerning Reciprocal Defense Procurement, dated April 19, 1995 (the “MOA”), and acknowledge that the MOA, and any extension thereof, applies to certain defence procurements that are outside the scope of this Chapter.

(b) The Parties will continue discussions on improving and expanding the relationship established by the MOA, recognising that this Agreement will have no application to, or impact on, the MOA or any of the rights and responsibilities established under the MOA.

Compliance

5. Each Party shall ensure that its procuring entities comply with this Chapter in conducting covered procurements.

Valuation

6. 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 use a particular method for estimating the value of the procurement for the purpose of avoiding the application of this Chapter;

(b) take into account all forms of remuneration, including any premiums, fees, commissions, interest, other revenue streams that may be provided for under the contract, and, where the procurement provides for the possibility of option clauses, the total maximum value of the procurement, inclusive of optional purchases; and

(c) without prejudice to paragraph 7, where the procurement is to be conducted in multiple parts, with contracts to be awarded at the same time or over a given period to one or more suppliers, base its calculation on the total maximum value of the procurement over its entire duration.

7. In the case of procurement by lease or rental or procurement that does not specify a total price, the basis for estimating the value of the procurement shall be, with respect to:

(a) a fixed-term contract,

(i) where the term is 12 months or less, the total estimated contract value for the contract’s duration, or

(ii) where the term exceeds 12 months, the total estimated contract value, including the estimated residual value, or

(b) a contract for an indefinite period, the estimated monthly instalment multiplied by 48. Where there is doubt as to whether the contract is to be a fixed-term contract, a procuring entity shall use the basis for estimating the value of the procurement described in this subparagraph.

8. Where the total estimated maximum value of a procurement over its entire duration is not known, the procurement shall be a covered procurement, unless otherwise excluded under this Agreement

9. All orders under contracts awarded for covered procurements shall be subject to Articles 15.2.1 and 15.2.2.

Article 15.2 : General Principles

National Treatment and Non-Discrimination

1. Each Party and its procuring entities shall accord unconditionally to the goods and services of the other Party and to the suppliers of the other Party offering the goods or services of that Party, treatment no less favourable than the most favourable treatment the Party or the procuring entity accords to domestic goods, services and suppliers.

2. A procuring entity of a Party may not:

(a) treat a locally established supplier less favourably than other locally established suppliers on the basis of degree of foreign affiliation or ownership; nor

(b) discriminate against a locally established supplier on the basis that the goods or services offered by that supplier for a particular procurement are goods or services of the other Party.

Procurement Methods

3. A procuring entity may use:

(a) open tendering procedures;

(b) selective tendering procedures, in accordance with Article 15.7.6; and

(c) limited tendering procedures, in accordance with Article 15.8.

Rules of Origin

4. Each Party shall apply to covered procurement of goods the rules of origin that it applies in the normal course of trade to those goods.

Offsets

5. A procuring entity may not seek, take account of, impose, or enforce offsets in the qualification and selection of suppliers, goods, or services,in the evaluation of tenders or in the award of contracts, before or in the course of a covered procurement.

Measures Not Specific to Procurement

6. Paragraphs 1 and 2 shall not apply to customs duties and charges of any kind imposed on or in connection with importation, the method of levying such duties and charges, other import regulations or formalities, and measures affecting trade in services other than measures governing covered procurements.

Non-Disclosure of Information

7. Nothing in this Chapter shall be construed as requiring a Party or its procuring entities to disclose, furnish, or allow access to confidential information furnished by a person where such disclosure might prejudice fair competition between suppliers, without the authorization of the person that furnished the information.

Article 15.3 : Publication of Procurement Information

1. Each Party shall promptly publish the following information relating to covered procurements, and any changes or additions to this information, in electronic or paper media that are widely disseminated and remain readily accessible to the public:

(a) laws, regulations, procedures, and policy guidelines; and

(b) judicial decisions and administrative rulings of general application.

2. Each Party shall, on request, provide an explanation relating to such information to the requesting Party.

Article 15.4 : Publication of Notice of Intended Procurement

1. For each covered procurement, except in the circumstances described in Articles 15.7.7(a) and (d) and 15.7.8, a procuring entity shall publish a notice inviting interested suppliers to submit tenders (“notice of intended procurement”) or, where appropriate, applications for participation in a procurement. The notice shall be published in electronic or paper media that are widely disseminated and remain readily accessible to the public for the entire period established for tendering.

2. A procuring entity shall include the following information in each notice of intended procurement:

(a) the name and address of the procuring entity and other information necessary to contact the procuring entity and obtain all relevant documents relating to the procurement;

(b) a description of the procurement and any conditions for participation; and

(c) the address and the time limit for the submission of tenders and, where appropriate, any time limit for the submission of an application for participation in a procurement, and the time frame for the delivery of goods or services.

Notice of Planned Procurement

3. Each Party shall encourage its procuring entities to publish as early as possible in each fiscal year a notice regarding their procurement plans. The notice should include the subject matter of any planned procurement and the estimated date of the publication of the notice of intended procurement. Where the notice is published in accordance with Article 15.5.3(a), a procuring entity may apply Article 15.5.3 for the purpose of establishing shorter time limits for tendering for covered procurements.

Article 15.5 : Time Limits

1. A procuring entity shall prescribe time limits for tendering that allow suppliers adequate time to submit applications or requests to participate in a covered procurement, including pursuant to Article 15.7.7(b) and (c), and to prepare and submit responsive tenders, taking into account the nature and complexity of the procurement.

2. Except as provided for in paragraphs 3 and 4, a procuring entity shall establish that the final date for the submission of tenders shall not be less than 30 days:

(a) from the date on which the notice of intended procurement is published; or

(b) where the entity has used selective tendering, from the date on which the entity invites suppliers to submit tenders.

3. Under the following circumstances, a procuring entity may establish a time limit for tendering that is less than 30 days, provided that such time limit is sufficiently long to enable suppliers to prepare and submit responsive tenders and is in no case less than ten days:

(a) where the procuring entity published a separate notice, including a notice of planned procurement under Article 15.4.3 at least 30 days and not more than 12 months in advance, and such separate notice contains a description of the procurement, the time limits for the submission of tenders or, where appropriate, applications for participation in a procurement, and the address from which documents relating to the procurement may be obtained;

(b) where the procuring entity procures commercial goods or services;

(c) in the case of second or subsequent publication of notices for procurement of a recurring nature; or

(d) where a state of urgency duly substantiated by the procuring entity renders impracticable the time limits specified in paragraph 1.

4. When a procuring entity publishes a notice of intended procurement in accordance with Article 15.4 in an electronic medium, or, in the case of selective tendering, issues an invitation to tender via an electronic medium and provides, to the extent practicable, the tender documentation via an electronic medium, the procuring entity may reduce the time limit for submission of a tender by up to five days. In no case shall the procuring entity reduce either time limit to less than ten days from the date on which the notice of intended procurement is published.

5. Where a procuring entity intends to limit the submission of tenders to all suppliers that the entity has determined have satisfied the conditions for participation, except where a notice of a multi-use list has been readily accessible in electronic form for a reasonable period, the entity shall include in an invitation to tender the time limit for submitting applications. Any conditions for participation in a tendering procedure shall be published sufficiently in advance to enable interested suppliers of the other Party to initiate and, to the extent that it is compatible with the efficient operation of the procurement process, complete the registration and qualification procedures within the time allowed for tendering.

6. A procuring entity shall require all participating suppliers to submit tenders in accordance with a common deadline. For greater certainty, this requirement also applies where:

(a) as a result of a need to amend information provided to suppliers during the procurement process, the procuring entity extends the time limit for qualification or tendering procedures; or

(b) negotiations are terminated and suppliers are permitted to submit new tenders.

Article 15.6 : Information on Intended Procurements

Tender Documentation

1. A procuring entity shall promptly provide, on request, to any supplier participating in a covered procurement, tender documentation that includes all information necessary to permit suppliers to prepare and submit responsive tenders. Unless already provided in the notice of intended procurement, such documentation shall include a complete description of:

(a) the procurement, including the nature, scope and, where known, the quantity of the goods or services to be procured and any requirements to be fulfilled, including any technical specifications, conformity certification, plans, drawings, or instructional materials;

(b) any conditions for participation, including any financial guarantees, information, and documents that suppliers are required to submit;

(c) all criteria to be considered in the awarding of the contract;

(d) where there will be a public opening of tenders, the date, time, and place for the opening of tenders; and

(e) any other terms or conditions relevant to the evaluation of tenders.

2. A procuring entity shall promptly reply to any reasonable request for relevant information by a supplier participating in the covered procurement, provided that the procuring entity may not make available information with regard to a specific procurement in a manner that would give a supplier or group of suppliers an advantage over its competitors in the procurement.

Technical Specifications

3. A procuring entity may not prepare, adopt, or apply any technical specification or prescribe any conformity assessment procedure with the purpose or the effect of creating unnecessary obstacles to trade between the Parties.

4. In prescribing the technical specifications for the good or service being procured, a procuring entity shall:

(a) specify the technical specifications, wherever appropriate, in terms of performance and functional requirements, rather than design or descriptive characteristics; and

(b) base the technical specifications on international standards, where such exist and are applicable to the procuring entity, except where the use of an international standard would fail to meet the procuring entity’s program requirements or would impose greater burdens than the use of a recognized national standard.

5. A procuring entity may not prescribe technical specifications that require or refer to a particular trademark or trade name, patent, copyright, design or type, specific origin, producer, or supplier, unless there is no other sufficiently precise or intelligible way of describing the procurement requirements and provided that, in such cases, words such as “or equivalent” are included in the tender documentation.

6. A procuring entity may not seek or accept, in a manner that would have the effect of precluding competition, advice that may be used in the preparation or adoption of any technical specification for a specific procurement from a person that may have a commercial interest in the procurement.

7. Notwithstanding paragraph 6, a procuring entity may:

(a) conduct market research in developing specifications for a particular procurement; or

(b) allow a supplier that has been engaged to provide design or consulting services to participate in procurements related to such services, provided it would not give the supplier an unfair advantage over other suppliers.

8. For greater clarity, this Article is not intended to preclude a procuring entity from preparing, adopting, or applying technical specifications to promote the conservation of natural resources and the environment.

Modifications

9. Where, during the course of a covered procurement, a procuring entity modifies the criteria or technical requirements set out in a notice or tender documentation provided to participating suppliers, or amends or reissues a notice or tender documentation, it shall transmit all such modifications or amended or re-issued notice or tender documentation:

(a) to all the suppliers that are participating at the time the information is amended, if known, and in all other cases, in the same manner as the original information; and

(b) in adequate time to allow such suppliers to modify and re-submit their initial tenders, as appropriate.

Article 15.7 : Tendering Procedures

Conditions for Participation

1. A Party, and its procuring entities, shall limit any conditions for participation in a covered procurement to those that ensure that a supplier has the legal, commercial, technical, and financial abilities to fulfill the requirements of the procurement.

2. In assessing whether a supplier satisfies the conditions for participation, a procuring entity:

(a)shall evaluate the financial, commercial, and technical abilities of a supplier on the basis of that supplier’s business activities both inside and outside the territory of the Party of the procuring entity;

(b)may not impose the condition that, in order for a supplier to participate in a procurement, the supplier has previously been awarded one or more contracts by a procuring entity of that Party or that the supplier has prior work experience in the territory of that Party;

(c) shall base its determination of whether a supplier has satisfied the conditions for participation solely on the conditions that the procuring entity has specified in advance in notices or tender documentation; and

(d) may require relevant prior experience where essential to meet the requirements of the procurement.

3. Nothing in this Article shall preclude the exclusion of a supplier on grounds such as:

(a) bankruptcy;

(b) false declarations; or

(c) significant deficiencies in performance of any substantive requirement or obligation under a prior contract.

Multi-Use Lists

4. A Party, and its procuring entities, may establish a multi-use list provided that the procuring entity or other government agency annually publishes or otherwise makes available continuously in electronic form a notice inviting interested suppliers to apply for inclusion on the list. The notice shall include:

(a) a description of the goods and services, or categories thereof, for which the list may be used;

(b) the conditions for participation to be satisfied by suppliers and the methods that the procuring entity or other government agency will use to verify a supplier’s satisfaction of the conditions;

(c) the name and address of the procuring entity or other government agency and other information necessary to contact the entity and obtain all relevant documents relating to the list; and

(d) any deadlines for submission of applications for inclusion on that list.

5. A procuring entity or other government agency that maintains a multi-use list shall include on the list all suppliers that satisfy the conditions for participation within a reasonably short time.

Selective Tendering

6. To ensure optimum effective competition under selective tendering procedures, procuring entities shall, for each intended covered procurement, invite tenders from the largest number of domestic suppliers and suppliers of the other Party that is consistent with the efficient operation of the procurement system.

7. A procuring entity applying selective tendering procedures shall use, in accordance with paragraph 6:

(a) a multi-use list, provided such a list is compiled in accordance with the provisions of this Chapter and is appropriate to the type of procurement being undertaken;

(b) a list of suppliers that have responded to a notice inviting suppliers to submit applications for participation in a procurement;

(c) a list of suppliers that have responded to a notice requesting all interested suppliers to express their interest in the procurement, provided that the procuring entity:

(i) publishes a notice requesting any interested supplier to submit an expression of its interest in the procurement and any information requested in the notice; the notice may be the notice of planned procurement under Article 15.4.3 where that notice invited suppliers to express their interest in the procurement; and

(ii) sends an invitation to submit tenders to all the suppliers that expressed an interest in the procurement, unless it has stated in the notice that it may limit the suppliers that it will invite, in accordance with paragraph 8; or

(d) a list of all the suppliers that have been granted a license or that have been determined by the appropriate agency, authority, or organization to comply with specific legal requirements that exist independent of the procurement process, provided that:

(i) the requirement for a license or compliance with specific legal requirements is essential to the conduct of the procurement;

(ii) the complete list of such suppliers is maintained by the appropriate agency, authority, or organization and is available to the procuring entity; and

(iii) the entity invites all the suppliers on the list to submit tenders in the procurement.

8. Provided that relevant requirements and criteria have been specified in advance in a notice or in tender documentation, a procuring entity, in determining the suppliers that will be invited to tender, under paragraphs 7(b) and (c) may:

(a) in assessing technical ability, assess the extent to which the suppliers’ proposals or responses meet the technical and performance specifications of the procurement; and

(b) limit the number of suppliers that it invites to tender based on the rating of the supplier proposals or responses.

9. A procuring entity shall apply the time limits set out in Article 15.5 for responses to the notices referred to in paragraphs 7(b) and (c).

Information on Procuring Entity Decisions

10. Where a supplier applies for participation in a covered procurement, including through a procedure described in paragraphs 7(b) or (c), or for inclusion on a list referred to in paragraph 4, a procuring entity shall promptly advise such supplier of its decision with respect to its application.

11. Where a procuring entity:

(a) rejects an application for participation in a covered procurement, including an application through a procedure described in paragraph 7(b) or (c),

(b) rejects a request for inclusion on a list, referred to in paragraph 4, or

(c) ceases to recognize a supplier as having satisfied the conditions for participation,

the procuring entity shall promptly inform the supplier and, on request of such supplier, promptly provide the supplier with a written explanation of the reasons for its decision.

Article 15.8 : Limited Tendering

1. Provided that it does not use this provision for the purpose of avoiding competition, to protect domestic suppliers, or in a manner that discriminates against suppliers of the other Party, a procuring entity may contact a supplier or suppliers of its choice and may choose not to apply Articles 15.4 through 15.7, 15.9.1, and 15.9.3 through 15.9.7 in relation to a covered procurement in any of the following circumstances:

(a) where, in response to a prior notice, invitation to participate, or invitation to tender,

(i) no tenders were submitted,

(ii) no tenders were submitted that conform to the essential requirements in the tender documentation, or

(iii) no suppliers satisfied the conditions for participation,

and the entity does not substantially modify the essential requirements of the procurement;

(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 the following reasons:

(i) the requirement is for works of art;

(ii)the protection of patents, copyrights, or other exclusive rights, or proprietary information; or

(iii) due to an absence of competition for technical reasons;

(c) for additional deliveries of goods or services by the original supplier or authorized representative that are intended either as replacement parts, extensions, or continuing services for existing equipment, software, services, or installations, where a change of supplier would compel the procuring entity to procure goods or services that do not meet requirements of interchangeability with existing equipment;

(d) for goods purchased on a commodity market;

(e) where a procuring entity procures a prototype or a first good or service that is intended for limited trial or that is developed at its request in the course of, and for, a particular contract for research, experiment, study, or original development;

(f) in so far as is strictly necessary where, for reasons of extreme urgency brought about by events unforeseen by the procuring entity, the goods or services could not be obtained in time under tendering procedures consistent with Articles 15.4 through 15.7;

(g) for new construction services consisting of the repetition of similar construction services that conform to a basic project for which an initial contract was awarded following use of open tendering or selective tendering in accordance with this Chapter and for which the entity has indicated in the notice of intended procurement concerning the initial construction service, that limited tendering procedures might be used in awarding contracts for those construction services;

(h) for purchases made under exceptionally advantageous conditions that only arise in the very short term, such as from unusual disposals, unsolicited innovative proposals, liquidation, bankruptcy, or receivership and not for routine purchases from regular suppliers; or

(i) in the case of a contract awarded to the winner of a design contest provided that:

(i)the contest has been organized in a manner that is consistent with this Chapter, and

(ii)the contest is judged by an independent jury with a view to a design contract being awarded to the winner.

2. For each contract awarded under paragraph 1, a procuring entity shall prepare a written report that includes:

(a) the name of the procuring entity;

(b) the value and kind of goods or services procured; and

(c) a statement indicating the circumstances and conditions described in paragraph 1 that justify the use of a procedure other than open or selective tendering procedures.

Article 15.9 : Treatment of Tenders and Awarding of Contracts

Receipt and Opening of Tenders

1. A procuring entity shall receive and open all tenders under procedures that guarantee the fairness and impartiality of the procurement process.

2. A procuring entity shall treat tenders in confidence. In particular, it shall not provide information to particular suppliers that might prejudice fair competition between suppliers.

3. A procuring entity shall not penalize any supplier whose tender is received after the time specified for receiving tenders if the delay is due solely to mishandling on the part of the procuring entity.

4. Where a procuring entity provides suppliers with opportunities to correct unintentional errors of form between the opening of tenders and the awarding of the contract, the procuring entity shall provide the same opportunities to all participating suppliers.

Awarding of Contracts

5. A procuring entity may not consider a tender for award unless, at the time of opening, the tender conforms to the essential requirements of all notices issued during the course of a covered procurement or tender documentation.

6. Unless a procuring entity determines that it is not in the public interest to award a contract, it shall award a contract to the supplier that the entity has determined satisfies the conditions for participation and is fully capable of undertaking the contract and whose tender is determined to be the lowest price, the best value, or the most advantageous, in accordance with the essential requirements and evaluation criteria specified in the notices and tender documentation.

7. A procuring entity may not cancel a covered procurement, nor terminate or modify awarded contracts so as to circumvent the requirements of this Chapter.

Information Provided to Suppliers

8. A procuring entity shall promptly inform suppliers that have submitted tenders of the contract award decision. Subject to Article 15.2.7, a procuring entity shall, on request, provide an unsuccessful supplier with the reasons that the entity did not select its tender.

Publication of Award Information

9. Not later than 60 days after the award of a contract for a covered procurement, a procuring entity shall publish a notice in an officially designated publication, which may be in an electronic or paper medium. The notice shall include at least the following information about the contract:

(a) the name and address of the procuring entity;

(b) a description of the goods or services procured;

(c) the date of award or the contract date;

(d) the contract value;

(e) the name and address of the successful supplier; and

(f) the procurement method used.

Provision of Information to the Other Party

10. On request of the other Party, a Party shall provide information on the tender and evaluation procedures used in the conduct of a covered procurement sufficient to demonstrate that the particular procurement was conducted fairly, impartially, and in accordance with this Chapter. The information shall include, at a minimum, the information specified in Article 15.8.2, and, to the extent necessary and without disclosing confidential information, information on the characteristics and relative advantages of the successful tender and on the contract price.

Maintenance of Records

11. A procuring entity shall maintain records and reports of tendering procedures relating to covered procurements, including the reports provided for in Article 15.8, and shall retain such records and reports for a period of at least three years after the award of a contract.

Article 15.10 : Ensuring Integrity in Procurement Practices

1. Each Party shall ensure that criminal or administrative penalties exist to sanction:

(a) a procurement official of that Party who solicits or accepts, directly or indirectly, any article of monetary value or other benefit, for that procurement official or for another person, in exchange for any act or omission in the performance of that procurement official’s procurement functions;

(b) any person who offers or grants, directly or indirectly, to a procurement official of that Party, any article of monetary value or other benefit, for that procurement official or for another person, in exchange for any act or omission in the performance of his or her procurement functions; and

(c) any person intentionally offering, promising or giving any undue pecuniary or other advantage, whether directly or through intermediaries, to a foreign procurement official, for that foreign procurement official or a third party, in order that the foreign procurement official act or refrain from acting in relation to the performance of procurement duties, in order to obtain or retain business or other improper advantage.

Article 15.11 : Domestic Review of Supplier Challenges

1. In the event of a complaint by a supplier of a Party that there has been a breach of the other Party’s measures implementing this Chapter in the context of a covered procurement in which the supplier has or had an interest, the Party of the procuring entity shall encourage the supplier to seek resolution of its complaint in consultation with the procuring entity. In such instances the procuring entity shall accord timely and impartial consideration to any such complaint.

2. Each Party shall maintain at least one impartial administrative or judicial authority that is independent of its procuring entities to receive and review challenges that suppliers submit, in accordance with the Party’s law, relating to a covered procurement. Each Party shall ensure that any such challenge not prejudice the supplier’s participation in ongoing or future procurement activities.

3. Where a body other than an authority referred to in paragraph 2 initially reviews a challenge, the Party shall ensure that the supplier may appeal the initial decision to an impartial administrative or judicial authority that is independent of the procuring entity that is the subject of the challenge.

4. Each Party shall ensure that the authorities referred to in paragraph 2 have the power to take prompt interim measures, pending the resolution of a challenge, to preserve the supplier’s opportunity to participate in the procurement and to ensure that the procuring entities of the Party comply with its measures implementing this Chapter. Such interim measures may include, where appropriate, suspending the contract award or the performance of a contract that has already been awarded.

5. Each Party shall ensure that its review procedures are conducted in accordance with the following:

(a) a supplier shall be allowed sufficient time to prepare and submit a written challenge, which in no case shall be less than ten days from the time when the basis of the complaint became known or reasonably should have become known to the supplier;

(b) a procuring entity shall respond in writing to a supplier’s complaint and provide all relevant documents to the review authority;

(c) a supplier that initiates a complaint shall be provided an opportunity to reply to the procuring entity’s response before the review authority takes a decision on the complaint; and

(d) the review authority shall provide its decision on a supplier’s challenge in a timely fashion, in writing, with an explanation of the basis for the decision.

Article 15.12 : Exceptions

1. Subject to the requirement that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between Parties where the same conditions prevail, or a disguised restriction on international trade, nothing in this Chapter shall be construed to prevent a Party from adopting or maintaining 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 the goods or services of handicapped persons, of philanthropic or not for profit institutions, or of prison labour.

2. The Parties understand that subparagraph 1(b) includes environmental measures necessary to protect human, animal or plant life or health.

Article 15.13 : Modifications and Rectifications to Coverage

1. The Joint Committee shall modify the relevant section of Annex 15-A to reflect any agreed modification, rectification, or minor amendment in the following circumstances:

(a) each Party may make rectifications of a purely formal nature to its coverage under this Chapter, or minor amendments to its Schedules to Section 1, 2, or 3 of Annex 15-A, provided that it notifies the other Party in writing and the other Party does not object in writing within 30 days of the notification. A Party that makes such a rectification or minor amendment need not provide compensatory adjustments.

(b) each Party may otherwise modify its coverage under this Chapter provided that it:

(i) notifies the other Party in writing and that Party does not object in writing within 30 days of the notification; and

(ii) offers within 30 days of the notification compensatory adjustments acceptable to the other Party to maintain a level of coverage comparable to that existing prior to the modification, where necessary.

2. A Party need not provide compensatory adjustments where the Parties agree that the proposed modification covers a procuring entity over which a Party has effectively eliminated its control or influence in respect of procurement by that entity. Where a Party objects to the assertion that such government control or influence has been effectively eliminated, the objecting Party may request further information or consultations with a view to clarifying the nature of any government control or influence and reaching agreement on the procuring entity’s status under this Chapter.

3. Each Party shall continue to encourage increased participation under this Chapter by its regional government entities.

Article 15.14 : Cooperation

1. The Parties recognize their shared interest in promoting international liberalization of government procurement markets in the context of the rules-based international trading system, including in the WTO and Asia Pacific Economic Cooperation.

2. Not later than 24 months after the date of entry into force of this Agreement, and at least biennially thereafter, the Joint Commission shall review the operation and implementation of this Chapter.

Article 15.15 : Definitions

For the purposes of this Chapter:

1. build-operate-transfer contract and public works concession contract mean any contractual arrangement the primary purpose of which is to provide for the construction or rehabilitation of physical infrastructure, plant, buildings, facilities, or other government owned works and under which, as consideration for a supplier’s execution of a contractual arrangement, a procuring entity grants the supplier, for a specified period of time, temporary ownership or a right to control and operate, and demand payment for the use of such works for the duration of the contract;

2. commercial goods and services mean goods and services of a type of goods and services that are sold or offered for sale to, and customarily purchased by, non-governmental buyers for non-governmental purposes; it includes goods and services with modifications customary in the commercial marketplace, as well as minor modifications not customarily available in the commercial marketplace;

3. conditions for participation means registration, qualification, and other pre-requisites for participation in a procurement;

4. in writing or written means any worded or numbered expression that can be read, reproduced, and later communicated. It may include electronically transmitted and stored information;

5. measure, as defined in Article 1.2.15, includes any guidelines;

6. 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;

7. offsets means any conditions or undertakings that require use of domestic content, domestic suppliers, the licensing of technology, technology transfer, investment, counter-trade, or similar actions to encourage local development or to improve a Party’s balance-of-payments accounts;

8. open tendering means a procurement method where all interested suppliers may submit a tender;

9. procurement official means any person who performs procurement functions;

10. procuring entity means an entity listed in Sections 1 through 3 of Annex 15-A;

11. selective tendering means a procurement method where the procuring entity determines the suppliers that it will invite to submit tenders;

12. services includes construction services, unless otherwise specified;

13. supplier means a person that provides or could provide goods or services to a procuring entity; and

14. 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, or the processes or methods for their provision, including any applicable administrative provisions; or

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

ANNEX 15-A

Section 1: Central Government Entities

1. This Chapter applies to central government entities listed in each Party’s Schedule to this Section where the value of the procurement is estimated, in accordance with Article 15.1.6 and 15.1.7, to equal or exceed:

(a) for procurement of goods and services: Adjusted Thresholds as of 1 January 2012: A$80,000 or US$77,494.

(b) for procurement of construction services: Adjusted Thresholds as of 1 January 2012: A$9,514,0001 or US$7,777,000.

1Note: the Australian dollar value of procurement of construction services will remain at the 2010 threshold level until advised otherwise.

The monetary thresholds set out in subparagraphs (a) and (b) shall be adjusted in accordance with Section 8 of this Annex.

Schedule of Australia1,2

1. Agriculture, Fisheries and Forestry Portfolio
2. Attorney-General’s Portfolio
3. Communications, Information Technology and the Arts Portfolio
4. Defence Portfolio
5. Education, Science and Training Portfolio
6. Employment and Workplace Relations Portfolio
7. Environment and Water Resources Portfolio
8. Human Services Portfolio
9. Families, Community Services and Indigenous Affairs Portfolio
10. Finance and Administration Portfolio
11. Foreign Affairs and Trade Portfolio
12. Health and Ageing Portfolio
13. Immigration and Citizenship Portfolio
14. Industry, Tourism and Resources Portfolio
15. Prime Minister and Cabinet Portfolio
16. Transport and Regional Services Portfolio
17. Treasury Portfolio
17. Parliamentary Departments
Notes to the Schedule of Australia

1. This Chapter covers only those entities subordinate to the relevant portfolio which are listed in this Schedule.

2. This Chapter does not cover the procurement of motor vehicles by any entity listed in this Section.

3. Department of Defence and Defence Materiel Organisation

(a) This Chapter does not cover the procurement of the following goods due to Article 22.2 (Essential Security):

Approximately equivalent to:
Weapons FSC 10
Fire Control Equipment FSC 12
Ammunition and Explosives FSC 13
Guided Missiles FSC 14
Aircraft and Airframe Structural Components FSC 15
Aircraft Components and Accessories FSC 16
Aircraft Launching, Landing, & Ground Handling Equipment FSC 17
Space Vehicles FSC 18
Ships, Small Craft, Pontoons and Floating Docks FSC 19
Ship and Marine Equipment FSC 20
Ground Effect Vehicles, Motor Vehicles, Trailers and Cycles FSC 23
Engines, Turbines, and Components FSC 28
Engines Accessories FSC 29
Bearings FSC 31
Water Purification and Sewage Treatment Equipment FSC 46
Valves FSC 48
Maintenance and Repair Shop Equipment FSC 49
Prefabricated Structures and Scaffolding FSC 54
Communication, Detection, and Coherent Radiation Equipment FSC 58
Electrical and Electronic Equipment Components FSC 59
Fiber Optics Materials, Components, Assemblies, and Accessories FSC 60
Electric Wire, and Power and Distribution Equipment FSC 61
Alarm, Signal and Security Detection Systems FSC 63
Instruments and Laboratory Equipment FSC 66
Specialty Metals No Code

NB: Whether a good is included within the scope of this Note shall be determined solely according to the descriptions provided in the left column above. U.S. Federal Supply Codes are provided for reference purposes only. (For a complete listing of the United States Federal Supply Codes, to which the Australian categories are approximately equivalent, see http://www.fedbizopps.gov/classCodes1.html.).

(b) For Australia, this Chapter does not cover the following services, as elaborated in the Common Classification System and the WTO system of classification – MTN.GNS/W/120, due to Article 22.2. (For a complete listing of Common Classification System, see: http://www.sice.oas.org/trade/nafta/chap-105.asp.)

(c) This Chapter does not cover the procurement of goods and services by, or on behalf of, the Defence Intelligence Organisation, the Defence Signals Directorate, or the Defence Imagery and Geospatial Organisation.

(d) In respect of Article 15.2, the Australian Government reserves the right, pursuant to Article 22.2, to maintain the Australian Industry Involvement program and its successor programs and policies.

4. Department of Finance and Administration This Chapter does not cover procurement by the Australian Reward Investment Alliance (formerly the PSS Board and CSS Board) of investment management, investment advisory, or master custody and safekeeping services for the purposes of managing and investing the assets of Australian Government superannuation funds.

Schedule of the United States1

1. Advisory Commission on Intergovernmental Relations

2. Africa Development Foundation

3. Alaska Natural Gas Transportation System

4. American Battle Monuments Commission

5. Appalachian Regional Commission

6. Broadcasting Board of Governors

7. Commission of Fine Arts

8. Commission on Civil Rights

9. Commodity Futures Trading Commission

10. Consumer Product Safety Commission

11. Corporation for National and Community Service

12. Delaware River Basin Commission

13. Department of Agriculture2

14. Department of Commerce3

15. Department of Defense4

16. Department of Education

17. Department of Energy5

18. Department of Health and Human Services

19. Department of Homeland Security6

20. Department of Housing and Urban Development

21. Department of the Interior, including the Bureau of Reclamation

22. Department of Justice

23. Department of Labor

24. Department of State

25. Department of Transportation7

26. Department of the Treasury

27. Department of Veterans Affairs

28. Environmental Protection Agency

29. Equal Employment Opportunity Commission

30. Executive Office of the President

31. Export-Import Bank of the United States

32. Farm Credit Administration

33. Federal Communications Commission

34. Federal Crop Insurance Corporation

35. Federal Deposit Insurance Corporation

36. Federal Election Commission

37. Federal Home Loan Mortgage Corporation

38. Federal Housing Finance Board

39. Federal Maritime Commission

40. Federal Mediation and Conciliation Service

41. Federal Mine Safety and Health Review Commission

42. Federal Prison Industries, Inc.

43. Federal Reserve System

44. Federal Retirement Thrift Investment Board

45. Federal Trade Commission

46. General Services Administration8

47. Government National Mortgage Association

48. Holocaust Memorial Council

49. Inter-American Foundation

50. Merit Systems Protection Board

51. National Aeronautics and Space Administration (NASA)

52. National Archives and Records Administration

53. National Capital Planning Commission

54. National Commission on Libraries and Information Science

55. National Council on Disability

56. National Credit Union Administration

57. National Foundation on the Arts and the Humanities

58. National Labor Relations Board

59. National Mediation Board

60. National Science Foundation

61. National Transportation Safety Board

62. Nuclear Regulatory Commission

63. Occupational Safety and Health Review Commission

64. Office of Government Ethics

65. Office of the Nuclear Waste Negotiator

66. Office of Personnel Management

67. Office of Special Counsel

68. Office of Thrift Supervision

69. Overseas Private Investment Corporation

70. Peace Corps

71. Pennsylvania Avenue Development Corporation

72. Railroad Retirement Board

73. Securities and Exchange Commission

74. Selective Service System

75. Small Business Administration

76. Smithsonian Institution

77. Susquehanna River Basin Commission

78. United States Agency for International Development

79. United States International Trade Commission

Notes to the Schedule of the United States

1. Unless otherwise specified in this Schedule, all agencies subordinate to the listed entities are covered by this Chapter.

2. Department of Agriculture: This Chapter does not cover the procurement of agricultural goods made in furtherance of agricultural support programs or human feeding programs.

3. Department of Commerce: This Chapter does not cover shipbuilding activities of the U.S. National Oceanic and Atmospheric Administration (NOAA).

4. Department of Defense: This Chapter does not cover the procurement of the goods listed below. (For a complete listing of U.S. Federal Supply Classification, see www.scrantonrtg.com/secrc/fsc-codes/fsc.html.)

(a) FSC 11 Nuclear Ordnance

FSC 18 Space Vehicles

FSC 19 Ships, Small Craft, Pontoons, and Floating Docks (the part of this classification defined as naval vessels or major components of the hull or superstructure thereof)

FSC 20 Ship and Marine Equipment (the part of this classification defined as naval vessels or major components of the hull or superstructure thereof)

FSC 2310 Passenger Motor Vehicles (only Buses)

FSC 2350 Combat, Assault & Tactical Vehicles, Tracked

FSC 5l Hand Tools

FSC 52 Measuring Tools

FSC 60 Fibre Optics Materials, Components, Assemblies, and Accessories

FSC 8140 Ammunition & Nuclear Ordnance Boxes, Packages & Special Containers

FSC 83 Textiles, Leather, Furs, Apparel, Shoes, Tents, and Flags (all elements other than pins, needles, sewing kits, flagstaffs, flagpoles and flagstaff trucks)

FSC 84 Clothing, Individual Equipment, and Insignia (all elements other than sub-class 8460 - luggage)

FSC 89 Subsistence (all elements other than sub-class 8975- tobacco products)

(b) “Specialty metals,” defined as steels melted in steel manufacturing facilities located in the United States or its possessions, where the maximum alloy content exceeds one or more of the following limits, must be used in products purchased by the Department of Defense: (1) manganese, 1.65 percent; silicon, 0.60 percent; or copper, 0.60 percent; or which contains more than 0.25 percent of any of the following elements: aluminum, chromium, cobalt, columbium, molybdenum, nickel, titanium, tungsten or vanadium; (2) metal alloys consisting of nickel, iron-nickel and cobalt base alloys containing a total of other alloying metals (except iron) in excess of 10 per cent; (3) titanium and titanium alloys; or (4) zirconium base alloys.

(c) For the United States, this Chapter generally does not cover the procurement of the goods in the following FSC categories, due to application of Article 22.2 (Essential Security):

FSC 10 Weapons

FSC 12 Fire Control Equipment

FSC 13 Ammunitions and Explosives

FSC 14 Guided Missiles

FSC 15 Aircraft and Airframe Structural Components

FSC 16 Aircraft Components and Accessories

FSC 17 Aircraft Launching, Landing, and Ground Handling Equipment

FSC 19 Ships, Small Craft, Pontoons, and Floating Docks

FSC 20 Ship and Marine Equipment

FSC 28 Engines, Turbines, and Components

FSC 31 Bearings

FSC 58 Communications, Detection, and Coherent Radiation

FSC 59 Electrical and Electronic Equipment Components

FSC 95 Metal Bars, Sheets, and Shapes

5. Department of Energy: This Chapter does not cover national security procurements made in support of safeguarding nuclear materials or technology and entered into under the authority of the Atomic Energy Act, or oil purchases related to the Strategic Petroleum Reserve.

6. Department of Homeland Security:

(a) This Chapter does not cover procurement by the Transportation Security Administration.

(b) The essential security interests of the United States equally apply to the United States Coast Guard.

7. Department of Transportation: This Chapter does not cover procurement by the Federal Aviation Administration.

8. General Services Administration: This Chapter does not cover the procurement of the goods in the following FSC categories:

FSC 5l Hand Tools

FSC 52 Measuring Tools

FSC 7340 Cutlery and Flatware

Section 2 : Regional Government Entities

1. This Chapter applies to the regional government entities listed in each Party’s Schedule to this Section where the value of the procurement is estimated, in accordance with Article 15.1.6 and 15.1.7, to equal or exceed:

(a) for procurement of goods and services: Adjusted Thresholds as of 1 January 2012: A$573,000 or US$552,000.

(b) for procurement of construction services: Adjusted Thresholds as of 1 January 2012: A$9,514,0001 or US$7,777,000.

1Note: the Australian dollar value of procurement of construction services will remain at the 2010 threshold level until advised otherwise.

The monetary thresholds set out in paragraph 1 shall be adjusted in accordance with Section 8 of this Annex.

Schedule of Australia

This Chapter covers only those entities specifically listed in this Schedule.

Australian Capital Territory

ACT Auditor-General’s Office
ACT Electoral Commission
ACT Emergency Services Australia
ACT Gambling and Racing Commission
ACT Health
ACT Insurance Authority
ACT Planning and Land Authority
ACT Planning and Land Council
ACT Workcover
ACTION
Chief Minister’s Department
Cultural Facilities Corporation
Department of Disability, Housing and Community Services
Department of Education and Training
Department of Justice and Community Safety
Department of Treasury
Department of Territory and Municipal Services
Director of Public Prosecutions
Environment Commissioner
Human Rights Commission
Legal Aid Office
National Exhibition Centre Trust
Ombudsman of the ACT
The Independent Competition and Regulatory Commission

For the entities listed for the Australian Capital Territory, this Chapter does not cover the procurement of health and welfare services, education services, utility services, or motor vehicles.

New South Wales

Department of Primary Industries
Rural Assistance Authority
NSW Food Authority
Attorney General’s Department
Department of Environment and Climate Change
Legal Aid Commission of NSW
Office of the Director of Public Prosecutions NSW
Public Trustee NSW
Department of Commerce
Motor Accidents Authority of NSW
Motor Vehicle Repair Industry Authority
WorkCover NSW
Commission for Children and Young People
Department of Ageing, Disability and Home Care
Department of Community Services
Office of the Children’s Guardian
Aboriginal Housing Office
Department of Aboriginal Affairs
Department of Education and Training
Office of the Board of Studies
Office of Science and Medical Research
Department of Water and Energy
Department of Liquor, Gaming and Racing
Department of Health
Health Care Complaints Commission
Department of Planning
Department of Natural Resources, Mines and Water
Sydney Harbour Foreshore Authority
Department of Corrective Services
Department of Juvenile Justice
Ministry for Police
New South Wales Crime Commission
Police Integrity Commission
Community Relations Commission
NSW Ombudsman
Parliamentary Counsel’s Office
Department of Premier and Cabinet
 Electoral Commission of New South Wales
The Audit Office of New South Wales
Department of State and Regional Development
Department of Lands
Department of Local Government
NSW Rural Fire Service
New South Wales Fire Brigades
State Emergency Service
Department of Arts, Sport and Recreation
Ministry of Transport
Sydney Olympic Park Authority
NSW Treasury
Tourism NSW

1. For the entities listed for New South Wales, this Chapter does not cover the procurement of health and welfare services, education services, or motor vehicles.

2. Australia shall phase-out the non-compliant offset and preference schemes of New South Wales within three years after the date of entry into force of this Agreement.

3. For the entities listed for New South Wales, the Chapter does not apply to procurements undertaken by a covered entity on behalf of a non-covered entity.

Northern Territory
Chief Minister’s Portfolio

Department of the Chief Minister
Auditor General’s Office
Department of Legislative Assembly
Ombudsman’s Office
Remuneration Tribunal
Business and Economic Development, Regional Development and Defence Support Portfolio
Department of Business, Economic and Regional Development
Indigenous Affairs Portfolio
Aboriginal Areas Protection Authority
Local Government, Housing, and Sport Portfolio
Department of Local Government, Housing and Sport

Employment, Education and Training Portfolio

Office of the Commissioner for Public Employment
Northern Territory Employment and Training Authority
Work Health Authority
Health, Family and Community Services Portfolio
Department of Health and Community Services
Health and Community Services Complaints Commission
Justice and Attorney-General’s Portfolio
Department of Justice
Lands and Planning Portfolio
Land Development Corporation
Natural Resources, Environment and Heritage, Parks and Wildlife, Arts and Museums Portfolio
Department of Natural Resources, Environment and the Arts
Parks and Wildlife Commission of the Northern Territory
Museum and Art Galleries Strehlow Centre Board
Police, Fire and Emergency Services Portfolio
Northern Territory Emergency Service
Northern Territory Fire and Rescue Service
Police Force of the Northern Territory
Racing, Gaming and Licensing Portfolio
Northern Territory Licensing Commission
Racing Commission
Tourism Portfolio
Northern Territory Tourist Commission
Treasury Portfolio
Northern Territory Treasury
Utilities Commission of the Northern Territory
Mines and Energy, Primary Industry and Fisheries Portfolio
Department of Primary Industries, Fisheries and Mines

1. For the entities listed for the Northern Territory, this Chapter does not cover set-asides on behalf of the Charles Darwin University pursuant to Partnership Agreements between the Northern Territory Government and Charles Darwin University.

2. Australia shall phase-out the non-compliant parts of its Building Northern Territory Industry Participation program within three years after the date of entry into force of this Agreement.

Queensland

Department of Justice and Attorney-General
Public Trust Office
Department of Child Safety
Department of Communities
Disability Services
Treasury Department
Government Superannuation Office
Motor Accident Insurance Commission
Nominal Defendant
Office of Economical and Statistical Research
Office of State Revenue
Queensland Office of Gaming and Regulation
Department of Emergency Services
Queensland Ambulance Service
Queensland Fire Service
Environmental Protection Agency
Queensland Parks and Wildlife Service
Department of Local Government, Planning, Sport and Recreation
Sport and Recreation Queensland
Office for Women
Department of Natural Resources and Water
Department of Mines and Energy
Queensland Police Service
Department of Corrective Services
Department of the Premier and Cabinet
Office of the Queensland Parliamentary Counsel
Office of the Public Service Commissioner
Department of Primary Industries
DPI Forestry
Department of Public Works
Department of Housing
Department of State Development
Department of Tourism, Fair Trading and Wine Industry Development
Office of Fair Trading
Department of Transport
Department of Main Roads
Department of Employment and Industrial Relations

1. For the entities listed for Queensland, this Chapter does not apply to procurements by covered entities on behalf of non-covered entities.

2. The procurement policies and procedures that are not compliant with the offsets provisions of this Chapter will be made compliant within three years from the date of entry into force of the Agreement.

3. For the entities listed for Queensland, this Chapter does not cover the procurement of health and welfare services, education services, government advertising and motor vehicles.

South Australia

Department of the Premier and Cabinet
Arts SA
Aboriginal Affairs and Reconciliation Division
Department of Treasury and Finance
Independent Gambling Authority
Department of Trade and Economic Development
Department of Primary Industries and Resources SA
Planning SA
Office for the Southern Suburbs
Justice Portfolio
Attorney-General’s Department
Department for Correctional Services
Country Fire Services
Courts Administration Authority
South Australia Fire and Emergency Services Administrative Unit
South Australian Metropolitan Fire Services
South Australian Police Department
State Electoral Office
Auditor-General’s Department
Department of Family and Community Services
Department of Health
Department of Education and Children's Services
Department of Further Education Employment, Science & Technology
SA Tourism Commission
Department for Environment and Heritage
Environment Protection Authority
Department of Water, Land and Biodiversity Conservation
Department of Transport, Energy and Infrastructure
Office for State/Local Government Relations
State Procurement Board

1. For the entities listed for South Australia, this Chapter does not cover the procurement of health and welfare services, education services, advertising services, or motor vehicles.

2. Any measure providing for inclusion of offsets in procurements will be phased out within three years of the date of entry into force of the Agreement.

Tasmania

Department of Education
Department of Health and Human Services
Department of Infrastructure, Energy and Resources
Department of Justice
Department of Police and Emergency Management
Department of Premier and Cabinet
Department of Primary Industries and Water
Department of Economic Development
Department of Tourism,Arts and the Environment
Department of Treasury and Finance
House of Assembly
Legislative Council
Legislature-General
Office of the Governor
Tasmanian Audit Office

For the entities listed for Tasmania, this Chapter does not cover the procurement of health and welfare services, education services, or advertising services.

Victoria

Departments
Department of Education
Department of Innovation Industry and Regional Development
Department of Human Services
Department of Infrastructure
Department of Justice
Department of Premier and Cabinet
Department of Primary Industries
Department of Sustainability and Environment
Department of Treasury and Finance
Department of Victorian Communities
Administrative Offices/Other Public Entities
Victorian Auditor-General’s Office
Office of Public Prosecutions
Office of the Chief Commissioner of Police
Office of the Ombudsman
State Services Authority
Office of the Essential Services Commissioner
Office of the Legal Services Commissioner
Office of the Victorian Electoral Commissioner
Office of the Victorian Privacy Commissioner
Office of the Commissioner for Environmental Sustainability
Office of Police Integrity
Office of the Special Investigations Monitor

1. For the entities listed for Victoria, this Chapter does not cover the procurement of motor vehicles.

2. Australia shall phase-out the non-compliant parts of its Victorian Industry Participation Policy within three years after the date of entry into force of this Agreement.

3. For the entities listed for Victoria, this Chapter does not apply to procurements by covered entities on behalf of non-covered entities.

Western Australia

Department of Agriculture and Food
Rural Business Development Corporation of Western Australia
Department of Fisheries
Mid West Development Commission
Wheatbelt Development Commission
Great Southern Development Commission
Office of the Director of Public Prosecutions
Office of the Information Commissioner
Law Reform Commission of Western Australia
Equal Opportunity Commission
Department of Health
Western Australian Electoral Commission
Department for Communities
Department for Child Protection
Disability Services Commission
Department of Culture and the Arts
Department of Consumer and Employment Protection
Department of Indigenous Affairs
Department of the Registrar, Western Australian Industrial Relations Commission
Department of Education and Training
Country High Schools Hostels Authority
Curriculum Council of Western Australia
Department of Education Services
Botanic Gardens and Parks Authority
Department of Water
Department of Environment and Conservation
Swan River Trust
Zoological Parks Authority
Department of Housing and Works
State Supply Commission of Western Australia
Department of Racing, Gaming and Liquor
Department of Local Government and Regional Development
Heritage Council of WA
National Trust of Australia (WA)
Kimberley Development Commission
Pilbara Development Commission
Gascoyne Development Commission
Goldfields Esperance Development Commission
Department for Planning and Infrastructure
Main Roads Western Australia
Western Australian Planning Commission
Public Transport Authority
Landgate
Fire and Emergency Services Authority of Western Australia
Department of Attorney General
Department of Corrective Services
Office of the Inspector of Custodial Services
Western Australian Police
Department of the Premier and Cabinet
Governor’s Establishment
Office of the Public Sector Standards Commissioner
Salaries and Allowances Tribunal
Department of Industry and Resources
Minerals and Energy Research Institute of Western Australia
Western Australian Tourism Commission (Tourism Western Australia)
Small Business Development Corporation
Rottnest Island Authority
Department of Sport and Recreation
Western Australian Sports Centre Trust
Peel Development Commission
South West Development Commission
Department of Treasury and Finance
Office of Energy
Perth International Centre for Application of Solar Energy
Legislative Assembly
Legislative Council
Office of the Auditor General
Office of the Parliamentary Commissioner for Administrative Investigations
Corruption and Crime Commission
Parliamentary Services Department

Schedule of the United States

This Chapter covers procurement only by those entities listed in this Schedule.

Arkansas

Executive branch agencies, including universities

For the entities listed for Arkansas, this Chapter does not cover procurement by the Office of Fish and Game or construction services.

California

Executive branch agencies

Colorado

Executive branch agencies

Connecticut

Department of Administrative Services

Connecticut Department of Transportation

Connecticut Department of Public Works

Constituent Units of Higher Education

Delaware*

Administrative Services (Central Procurement Agency)

State Universities

State Colleges

Florida*

Executive branch agencies

Georgia

Department of Administrative Services

Georgia Technology Authority

For the entities listed for Georgia, this Chapter does not cover the procurement of beef, compost, or mulch.

Hawaii

Department of Accounting and General Services

For the entities listed for Hawaii, this Chapter does not cover procurement of software developed in the state or construction services.

Idaho

Central Procurement Agency (including all colleges and universities subject to central purchasing oversight)

Illinois*

Department of Central Management Services

Kansas

Executive branch agencies

For the entities listed for Kansas, this Chapter does not cover the procurement of construction services, automobiles, or aircraft.

Kentucky

Division of Purchases, Finance and Administration Cabinet

For the entity listed for Kentucky, this Chapter does not cover procurement for construction projects.

Louisiana

Executive branch agencies

Maine*

Department of Administrative and Financial Services

Bureau of General Services (covering state government agencies and school construction)

Maine Department of Transportation

Maryland*

Office of the Treasury

Department of the Environment

Department of General Services

Department of Housing and Community Development

Department of Human Resources

Department of Licensing and Regulation

Department of Natural Resources

Department of Personnel

Department of Public Safety and Correctional Services

Department of Transportation

Michigan*

Department of Management and Budget

Mississippi

Department of Finance and Administration

For the entities listed for Mississippi, this Chapter does not cover the procurement of services.

Nebraska

Central Procurement Agency

New Hampshire*

Central Procurement Agency

New York*

State agencies

State university system

Public authorities and public benefit corporations

1. For the entities listed for New York, this Chapter does not cover public authorities and public benefit corporations with multi-state mandates.

2. For the entities listed for New York, this Chapter does not cover the procurement of transit cars, buses, or related equipment.

Oklahoma*

Office of Public Affairs and all state agencies and departments subject to the Oklahoma Central Purchasing Act

1. For the entities listed for Oklahoma, this chapter does not cover the procurement of construction services.

Oregon

Department of Administrative Services

Pennsylvania*

Executive branch agencies, including:

..Governor's Office

..Department of the Auditor General

..Treasury Department

..Department of Agriculture

..Department of Banking

..Pennsylvania Securities Commission

..Department of Health

..Department of Transportation

..Insurance Department

..Department of Aging

..Department of Correction

..Department of Labor and Industry

..Department of Military Affairs

..Office of Attorney General

..Department of General Services

..Department of Education

..Public Utility Commission

..Department of Revenue

..Department of State

..Pennsylvania State Police

..Department of Public Welfare

..Fish Commission

..Game Commission

..Department of Commerce

..Board of Probation and Parole

..Liquor Control Board

..Milk Marketing Board

..Lieutenant Governor's Office

..Department of Community Affairs

..Pennsylvania Historical and Museum Commission

..Pennsylvania Emergency Management Agency

..State Civil Service Commission

..Pennsylvania Public Television Network

..Department of Environmental Resources

..State Tax Equalization Board

..Department of Public Welfare

..State Employees' Retirement System

..Pennsylvania Municipal Retirement Board

..Public School Employees' Retirement System

..Pennsylvania Crime Commission

..Executive Offices

Rhode Island

Executive branch agencies

For the entities listed for Rhode Island, this Chapter does not cover the procurement of boats, automobiles, buses, or related equipment.

South Dakota

Central Procuring Agency (including universities and penal institutions)

For the entities listed for South Dakota, this Chapter does not cover procurement of beef.

Tennessee

Executive branch agencies

1. For the entities listed for Tennessee, this Chapter does not cover the procurement of services, including construction services.

Texas

Texas Building and Procurement Commission

For the entity listed for Texas, this Chapter does not apply to preferences for: (1) motor vehicles; (2) travel agents located in Texas; or (3) rubberized asphalt paving made from scrap tires by a Texas facility.

Utah

Executive branch agencies

Vermont

Executive branch agencies

Washington

Washington State executive branch agencies, including:

..General Administration

..Department of Transportation

..State Universities

For the entities listed for Washington, this Chapter does not cover the procurement of fuel, paper products, boats, ships, or vessels.

Wyoming*

Procurement Services Division

Wyoming Department of Transportation

University of Wyoming

Notes to the Schedule of the United States

1. For the United States regional entities marked by an asterisk (*), indicating pre-existing restrictions, this Chapter does not cover procurement of construction-grade steel (including requirements on subcontracts), motor vehicles, or coal.

2. For the United States regional entities, this Chapter does not apply to preferences or restrictions associated with programs promoting the development of distressed areas or businesses owned by minorities, disabled veterans, or women.

3. Nothing in this Annex shall be construed to prevent any state entity from applying restrictions that promote the general environmental quality in that state, as long as such restrictions are not disguised barriers to international trade.

4. This Chapter does not cover any procurement made by a covered entity on behalf of non-covered entities at a different level of government.

5. For the United States regional entities, this Chapter does not apply to restrictions attached to Federal funds for mass transit and highway projects.

6. For the United States regional entities, this Chapter does not cover the procurement of printing services.

Section 3: Government Enterprises

1. This Chapter applies to the government enterprises listed in each Party’s Schedule to this Section where the value of the procurement is estimated, in accordance with Article 15.1.6 and 15.1.7, to equal or exceed:

(a) for procurement of goods and services:

(i) of List A entities, Adjusted Thresholds as of 1 January 2012: A$402,000 or US$387,471.

(ii) of List B entities, Adjusted Threshold as of 1 January 2012: US$622,000 (Australia has not listed any List B entities)

(b) for procurement of construction services for List A and List B entities: Adjusted Thresholds as of 1 January 2012: A$9,514,0001 or US$7,777,000.

1Note: the Australian dollar value of procurement of construction services will remain at the 2010 threshold level until advised otherwise.

The monetary thresholds set out in sub-paragraphs (a) and (b) shall be adjusted in accordance with Section 8 of this Annex.

Schedule of Australia1, 2

List A:

1. Aged Care Standards and Accreditation Agency Ltd.

2. Australian Accounting Standards Board

3. Australian Communications and Media Authority

4. Australian Fisheries Management Authority

5. Australian Institute of Criminology

6. Australian Institute of Health and Welfare

7. Australian Institute of Marine Science

8. Australian Law Reform Commission

9. Australian Maritime Safety Authority

10. Australian National Maritime Museum

11. Australian Nuclear Science and Technology Organization

12. Australian Pesticides and Veterinary Medicines Authority

13. Australian Prudential Regulation Authority

14. Australian Securities and Investments Commission

15. Tourism Australia

16. Australian Trade Commission (Austrade)

17. Australian War Memorial3

18. Comcare

19. Commonwealth Scientific and Industrial Research Organisation

20. Corporations and Markets Advisory Committee

21. Export Finance and Insurance Corporation

22. Grains Research and Development Corporation

23.. Great Barrier Reef Marine Park Authority

24. Medicare Australia

25. Land and Water Resources Research and Development Corporation

26. National Gallery of Australia

27. National Museum of Australia

28 Australian Safety and Compensation Council

29. Reserve Bank of Australia

30. Sydney Harbour Federation Trust

31. The Director of National Parks

32. The National Institute of Clinical Studies Ltd.

Notes to the Schedule of Australia

1. For the entities listed in Australia’s list A, this Chapter covers only those entities listed in this Schedule.

2. For the entities listed in Australia’s list A, this Chapter does not cover the procurement of motor vehicles.

3. This Chapter does not cover procurement of telecommunications services by the Australian War Memorial.

Schedule of the United States

List A:

1. Tennessee Valley Authority

2. Bonneville Power Administration

3. Western Area Power Administration

4. Southeastern Power Administration

5. Southwestern Power Administration

6. St. Lawrence Seaway Development Corporation

List B:

Rural Utilities Service1

Notes to the Schedule of the United States

1. The Rural Utilities Service shall:

(a) waive federal buy national requirements imposed as conditions of funding for all power generation projects; and

(b) apply procurement procedures equivalent to the procedures in the WTO Agreement on Government Procurement and national treatment to funded projects exceeding the thresholds specified above.

2. For greater clarity, this Chapter does not apply to any other aspect of procurement by the Rural Utilities Service, including any restrictions the Rural Utilities Service places on financing for telecommunications projects.

3. With respect to procurement by entities listed in this Section, this Chapter does not apply to restrictions attached to Federal funds for airport projects.

Section 4 : Goods

This Chapter applies to all goods procured by the entities listed in Sections 1 through 3, unless otherwise specified in this Chapter, including this Annex.

Section 5 : Services

This Chapter applies to all services procured by the entities listed in Sections 1 through 3, unless otherwise specified in this Chapter, including this Annex.

Schedule of Australia

This Chapter does not cover the procurement of plasma fractionation services or government advertising services.

Schedule of the United States

This Chapter does not cover the procurement of the following services, as elaborated in the Common Classification System and the WTO system of classification – MTN.GNS/W/120. (For a complete listing of Common Classification System, see: http://www.tcc.mac.doc.gov/cgi-bin/doit.cgi?204:66:601961876:49#An1001.1b-2-B.)

Basic telecommunications network and services listed in paragraph 2C(a) through (g) of WTO document MTN.GNS/W/120, such as public voice and data services. This exclusion does not include information services, as defined in 47 United States Code (USC) 153(20). See http://www.gpoaccess.gov/uscode/search.html.

J. Maintenance, Repair, Modification, Rebuilding and Installation of Goods/ Equipment

J019 Maintenance, Repair, Modification, Rebuilding and Installation of Equipment Related to Ships

J998 Non-nuclear Ship Repair

M. Operation of Government-Owned Facilities:

All facilities operated by the Department of Defense, Department of Energy, and the National Aeronautics and Space Administration; and

for all entities in Section 1 through Section 3: M180 Research and Development facilities

S. Utilities: All Classes

V. Transportation, Travel and Relocation Services: All Classes except V503 Travel Agent Services

Note to the Schedule of the United States

1. This Chapter does not cover the procurement of any service in support of military forces overseas.

Section 6: Construction Services

This Chapter applies to all construction services procured by the entities listed in Sections 1 through 3, unless otherwise specified in this Chapter, including this Annex.

Schedule of the United States

This Chapter does not cover the procurement of dredging services.

Note to Section 6

1. Buy national requirements on articles, supplies, or materials acquired for use in construction services contracts covered by this Chapter shall not apply to goods of either Party.

Section 7: General Notes

Unless otherwise specified herein, the following General Notes in each Party’s Schedule apply without exception to this Chapter, including to all sections of this Annex.

Schedule of Australia

This Chapter does not apply to:

(a) any form of preference to benefit small and medium enterprises;

(b) measures to protect national treasures of artistic, historic, or archaeological value;

(c) measures for the health and welfare of indigenous people; and

(d) measures for the economic and social advancement of indigenous people.

Schedule of the United States

1. This Chapter does not apply to set asides on behalf of small or minority businesses. Set-asides include any form of preference, such as the exclusive right to provide a good or service and price preferences.

2. Where a contract is to be awarded by an entity that is not listed in Section 1, 2 or 3, this Chapter shall not be construed as covering any good or service component of that contract.

3. This Chapter does not apply to the procurement of transportation services that form a part of, or are incidental to, a procurement contract.

Section 8: Threshold Adjustment Formula

1. The thresholds in Sections 1 through 3 shall be adjusted at two-year intervals with each adjustment taking effect in January, beginning on January 1, 2006.

2. With regard to thresholds for goods and services in Section 1 and for goods and services for List A entities referred to in Section 3, the U.S. dollar value for each threshold shall be calculated every two years, based on the U.S. inflation rate measured by the Producer Price Index for Finished Goods published by the U.S. Bureau of Labor Statistics, using the two-year time that ends on October 31 in the year prior to the adjustment taking effect, and using the following formula:

T1 = T0 x (1+ i)

T0 = threshold value at base period

i = accumulated U.S. inflation rate for the “i”th two year-period

T1 = new threshold value; and

3. The thresholds for goods and services in Section 2, for goods and services for List B entities in Section 3, and for construction services in Sections 1 through 3 are conversions into U.S. dollars of the thresholds listed in the U.S. Appendix 1 to the WTO Agreement on Government Procurement, which are set out in Special Drawing Rights (SDRs) and listed below. Adjustments of these thresholds shall be calculated, based on an average of the daily conversion rates of the U.S. dollar in terms of SDRs published by the IMF in its monthly “International Financial Statistics”, for the two-year period preceding October 1 or November 1 of the year before the adjusted thresholds are to take effect:

(a) 5 million SDRs for construction services;

(b) 355,000 SDRs for goods and services for Section 2 entities; and

(c) 400,000 SDRs for goods and services for Section 3 List B entities.

4. The U.S. dollar value of the adjusted thresholds shall be converted into the Australian dollar based on the official conversion rate of the Reserve Bank of Australia, using the average of the daily values of the Australian dollar in terms of the U.S. dollar over the two-year period ending September 30 in the year prior to the adjustments taking effect, and rounded to the nearest thousand Australian dollars;

5. Each Party shall notify the other Party of the adjusted thresholds in their respective currencies; and

6. The Parties shall consult if a major change in a national currency vis-à-vis the other currency were to create a significant problem with regard to the application of the Chapter.

See also