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UNITED STATES - AUSTRALIA
FREE TRADE AGREEMENT
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Index > Chapters >
1-13 > 14-23 >
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CHAPTER FOURTEEN
COMPETITION-RELATED MATTERS
ARTICLE 14.1 : OBJECTIVES
Recognizing that the conduct subject to this Chapter has the potential to
restrict bilateral trade and investment, the Parties believe that proscribing such conduct,
implementing policies that promote economic efficiency and consumer welfare, and cooperating on matters
covered by this Chapter will help secure the benefits of this Agreement.
ARTICLE 14.2 : COMPETITION LAW
AND ANTICOMPETITIVE BUSINESS
CONDUCT
1. Each Party shall maintain or adopt measures to proscribe anticompetitive
business conduct and take appropriate action with respect thereto, recognizing that
such measures will help realise the objectives of this Agreement. To this end, the Parties shall
consult from time to time about the effectiveness of measures that a Party has undertaken. Each
Party shall ensure that a person subject to the imposition of a sanction or remedy for violation
of such measures is provided with the opportunity to be heard and to present evidence, and to
seek review of such sanction or remedy in a court or independent tribunal of that Party.
2. Each Party shall maintain an authority or authorities responsible for the
enforcement of its national competition laws. The enforcement policy of each Party’s central
government authorities responsible for the enforcement of such laws includes treating
non-nationals no less favourably than nationals in like circumstances, and each Party’s authorities
intend to maintain this policy, in that regard.
3. The Parties recognize the importance of cooperation and coordination
between their respective authorities to further effective competition law enforcement in
the free trade area. The Parties shall cooperate in relation to the enforcement of competition
laws and policy, including through mutual assistance, notification, consultation, and exchange
of information.
(a) The Parties recognize their existing mechanisms for cooperation in
relation to competition law enforcement, specifically:
(i) The Agreement between the Government of Australia and the Government of the United States of America relating to Cooperation on Antitrust Matters of 1982; and
(ii) The Agreement between the Government of Australia and the Government of the United States of America on Mutual Antitrust Enforcement Assistance of 1999.
(b) The Parties shall work to further strengthen their cooperation in these
areas. Such cooperation shall include consideration by a Party’s central government authorities responsible for the enforcement of its competition laws, where feasible and appropriate, of a request by the other
Party’s central government authorities responsible for the enforcement of its
competition laws to initiate or expand enforcement activities.
4. To further advance their cooperation, the Parties shall examine the scope
for strengthening support for, and minimizing legal impediments to, the effective
enforcement of each other’s competition laws and policies. The Parties shall establish a
joint working group with the goal of seeking to reach a common view, by the first meeting of the
Joint Committee established pursuant to Chapter 21 (Institutional Arrangements and Dispute
Settlement), of appropriate steps to enhance their respective legal and regulatory regimes in
that regard.
ARTICLE 14.3 : DESIGNATED MONOPOLIES
1. Recognizing that designated monopolies should not operate in a manner that
creates obstacles to trade and investment, each Party shall ensure that any
privately-owned monopoly that it designates after the date of entry into force of this Agreement and
any government monopoly that it designates or has designated:
(a) acts in a manner that is not inconsistent with the Party’s obligations
under this Agreement wherever such a monopoly exercises any regulatory, administrative, or other governmental authority that the Party has delegated to it in
connection with the monopoly good or service, such as the power to grant import or
export licenses, approve commercial transactions, or impose quotas, fees, or other charges;
(b) acts solely in accordance with commercial considerations in its purchase
or sale of the monopoly good or service in the relevant market, including with regard to price, quality, availability, marketability, transportation, and other terms
and conditions of purchase or sale, except to comply with any terms of its
designation that are not inconsistent with subparagraph (c) or (d);
(c) provides non-discriminatory treatment to covered investments, to goods of
the other Party, and to service suppliers of the other Party in its purchase or
sale of the monopoly good or service in the relevant market; and
(d) does not use its monopoly position to engage, either directly or
indirectly, including through its dealings with its parent, subsidiaries, or other
enterprises with common ownership, in anticompetitive practices in a non-monopolized market in its territory, where such practices adversely affect covered
investments.
2. Nothing in this Chapter shall be construed as preventing a Party from
designating a monopoly.
3. This Article does not apply to government procurement.
ARTICLE 14.4 : STATE ENTERPRISES
AND RELATED MATTERS
1. The Parties recognize that state enterprises should not operate in a
manner that creates obstacles to trade and investment. In that light, each Party shall ensure
that any state enterprise that it establishes or maintains:
(a) acts in a manner that is not inconsistent with the Party’s obligations
under this Agreement wherever such enterprise exercises any regulatory, administrative,
or other governmental authority that the Party has delegated to it, such as the
power to expropriate, grant licenses, approve commercial transactions, or impose
quotas, fees, or other charges; and
(b) accords non-discriminatory treatment in the sale of its goods or
services.
2. The United States shall ensure that anticompetitive activities by
sub-federal state enterprises are not excluded from the reach of its national antitrust laws
solely by reason of their status as sub-federal state enterprises, to the extent that their activities
are not protected by the State Action Doctrine.
3. Australia shall take reasonable measures, including through its policy of
competitive neutrality, to ensure that its governments at all levels do not provide any
competitive advantage to any government businesses simply because they are government-owned. This
paragraph applies to the business activities of government businesses and not to their
non-business, non-commercial activities. Australia shall ensure that its competitive neutrality complaints
offices treat complaints lodged by the United States, or persons of the United
States, no less favourably than complaints lodged by persons or government bodies of Australia.
ARTICLE 14.5 : DIFFERENCES IN PRICING
Articles 14.3 and 14.4 shall not be construed as preventing a monopoly or
state enterprise from charging different prices in different markets, or within the same market,
where such differences are based on normal commercial considerations, such as taking account of
supply and demand conditions.
ARTICLE 14.6 : CROSS BORDER
CONSUMER PROTECTION
1. The Parties recognize the importance of cooperation and coordination on
matters related to their consumer protection laws in order to enhance consumer welfare in the
free trade area. Accordingly, the Parties shall cooperate in the enforcement of their consumer
protection laws.
2. The Parties recognize the existing mechanisms for cooperation in relation
to consumer protection, including:
(a) the Agreement between the Federal Trade Commission of the United
States of America and the Australian Competition and Consumer Commission on the Mutual Enforcement Assistance in Consumer Protection Matters of 2000;
(b) the OECD Guidelines for Protecting Consumers from Fraudulent and
Deceptive Commercial Practices Across Borders of 2003; and
(c) the International Consumer Protection and Enforcement Network (ICPEN).
3. The Parties shall further strengthen cooperation and coordination among
their respective agencies, including the U.S. Federal Trade Commission (FTC) and the
Australian Competition and Consumer Commission (ACCC) in areas of mutual concern, in particular
fraudulent and deceptive commercial practices against consumers:
(a) in the development of appropriate procedures for
(i) cooperating in the prompt detection of consumer protection law violations affecting consumers or markets in both Parties’ territories,
(ii) notifying each other of significant investigations and proceedings involving consumer protection law violations occurring or originating in the territory of the other Party or significantly affecting consumers or markets in the territory of the other Party,
(iii) exchanging information related to the administration of their consumer protection laws,
(iv) providing enforcement and investigative assistance to each other to the extent compatible with each Party’s laws, in appropriate consumer protection law cases, and
(v) consulting and coordinating on enforcement actions against consumer protection law violations that have a significant cross-border dimension;
(b) in the development of coordinated strategies to combat fraudulent and
deceptive commercial practices against consumers, both bilaterally and multilaterally;
and
(c) through joint study of additional measures to enhance the scope and
effectiveness of information sharing, investigative assistance, and cooperation and
coordination in the enforcement of the Parties’ respective consumer protection laws,
including the use of investigative powers and participation in appropriate court
proceedings.
4. Nothing in this Article shall limit the discretion of the FTC or ACCC to
decide whether to take action on particular requests by the other agency, or shall preclude
either agency from taking action with respect to particular cases.
5. In addition, the Parties shall identify, in areas of mutual concern and
consistent with their important interests, obstacles to effective cross-border cooperation in the
enforcement of consumer protection laws, and shall consider changing their domestic
frameworks to overcome such obstacles and enhance the ability of the Parties to cooperate, share
information, and assist in the enforcement of each other’s consumer protection
laws, including, if appropriate, adopting or amending national legislation to overcome such obstacles.
ARTICLE 14.7 : RECOGNITION AND
ENFORCEMENT OF MONETARY JUDGMENTS
1. The Parties recognize the importance of civil proceedings by the FTC, U.S.
Securities and Exchange Commission, U.S. Commodity Futures Trading Commission,
Australian Securities and Investments Commission, and the ACCC to provide monetary
restitution to consumers, investors, or customers who have suffered economic harm as a
result of being deceived, defrauded, or misled. The Parties further recognize the importance
of facilitating cross-border recognition and enforcement of monetary judgments obtained for
such purposes.
2. When an agency listed in paragraph 1 obtains a civil monetary judgment
from a judicial authority of a Party for the purpose of providing monetary restitution to
consumers, investors, or customers who have suffered economic harm as a result of being deceived,
defrauded, or misled, a judicial authority of the other Party generally should not disqualify such
a monetary judgment from recognition or enforcement on the ground that it is penal or revenue in
nature or based on other foreign public law, including where such judgment contains provisions
for recovery of monies or other disposition in the event that restitution is impractical or
for payment of expenses related to the collection or distribution of such a monetary judgment.
3. The judicial authorities of a Party should consider the recognition or
enforcement of provisions for monetary judgments described in paragraph 2 separately from
other provisions of the judgment, to the extent such other provisions are deemed to be penal or
revenue in nature or based on other foreign public law for the purposes of recognition or
enforcement.
4. Nothing in this Article is intended to affect whether any other category
of law or judgment is appropriately viewed as penal or revenue in nature or based on
other foreign public law for the purposes of the recognition or enforcement of foreign judgments.
5. Each Party’s agencies listed in paragraph 1 should cooperate with the
relevant agencies of the other Party, where feasible and appropriate, in facilitating the
identification of consumers, investors, and customers described in paragraph 2 and on other matters
relating to payment of monetary judgments.
6. The Parties shall work together to examine the scope for establishing
greater bilateral recognition of foreign judgments of their respective judicial authorities
obtained for the benefit of consumers, investors, or customers who have suffered economic harm as a
result of being deceived, defrauded, or misled; and shall report on the feasibility and
appropriateness of, and progress toward, greater recognition of such foreign judgments at the first
meeting of the Joint Committee.
ARTICLE 14.8 : TRANSPARENCY
1. The Parties recognize the value of transparency in their competition
policies.
2. On request of a Party, each Party shall make available to the other Party
public information concerning:
(a) the enforcement of its measures proscribing anticompetitive business
conduct;
(b) its state enterprises, government businesses, and public or private
designated monopolies, provided that requests for such information shall indicate the
entities involved, specify the particular products and markets concerned, and include indicia that these entities may be engaging in practices that may hinder
trade or investment between the Parties; and
(c) exemptions and immunities to its measures proscribing anticompetitive
business conduct, provided that requests shall specify the particular goods and
markets of concern and include indicia that the exemptions and immunities may hinder
trade or investment between the Parties.
ARTICLE 14.9 : COOPERATION
The Parties recognize that policies related to matters covered by this
Chapter can be a force for open and competitive markets domestically and internationally. They also
recognize that such policies can have an effect on investment and on the extent to which
enterprises of a Party can compete with, sell goods and services to, and purchase good and services from
enterprises of the other Party. Accordingly, the Parties shall cooperate, including in the
manner provided for in Articles 14.2.3 and 14.6, to promote policies related to matters covered by
this Chapter that foster free trade and investment and competitive markets.
ARTICLE 14.10 : CONSULTATIONS
1. To foster understanding between the Parties, or to address specific
matters that arise under this Chapter, each Party shall, on request of the other Party, enter
into consultations regarding representations made by the other Party. In its request, the Party
shall indicate, if relevant, how the matter affects trade or investment between the Parties.
2. The Party to which a request for consultations has been addressed shall
accord full and sympathetic consideration to the concerns raised by the Party having made the
request.
ARTICLE 14.11 : DISPUTE SETTLEMENT
Neither Party may have recourse to dispute settlement under this Agreement
for any matter arising under Articles 14.2, 14.4.2, 14.4.3, 14.6, 14.7, 14.9, or 14.10.2.
ARTICLE 14.12 : DEFINITIONS
For the purposes of this Chapter:
1. consumer protection laws means:
(a) in the case of the United States, laws and regulations prohibiting
“unfair or deceptive acts or practices” within the meaning of Section 5 of the
Federal Trade Commission Act; and
(b) in the case of Australia, Parts IVA, V, and VC of the Trade Practices
Act 1974;
as well as any amendments thereto, and such other laws or regulations as the
Parties may agree in writing;
2. designate means, whether formally or in effect, to establish,
designate, or authorize a monopoly or to expand the scope of a monopoly to cover an additional good or
service;
3. government businesses means Australian government businesses within
the meaning of Australia’s Competition Principles Agreement of 1995;
4. government monopoly means a monopoly that is owned, or controlled
through ownership interests, by the central government of a Party or by another such
monopoly;
5. in accordance with commercial considerations means consistent with
normal business practices of privately-held enterprises in the relevant business or industry;
6. market means the geographical and commercial market for a good or
service;
7. monopoly means an entity, including a consortium or government
agency, that in any relevant market in the territory of a Party is designated as the sole
provider or purchaser of a good or service, but does not include an entity that has been granted an
exclusive intellectual property right solely by reason of such grant;
8. non-discriminatory treatment means the better of national treatment
and mostfavoured-nation treatment, as set out in the relevant provisions of this Agreement,
including the terms and conditions set out in the relevant Annexes thereto; and
9. state enterprise means an enterprise owned, or controlled through
ownership interests, by any level of government of a Party.
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 Article
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
requirements, 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:
A$81,800 or US$58,550
(b) for procurement of construction services:
A$9,396,000 or US$6,725,000.
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
Department of Agriculture, Fisheries and Forestry
Dairy Adjustment Authority
2. Attorney-General’s Portfolio
Attorney-General’s Department
Administrative Appeals Tribunal
Australian Crime Commission
Australian Customs Service
Australian Federal Police
AUSTRAC
Classification Board
Classification Review Board
CrimTrac Agency
Family Court of Australia
Federal Court of Australia
Federal Magistrates Court
Human Rights and Equal Opportunity Commission
Insolvency and Trustee Service Australia (ITSA)
National Native Title Tribunal
Office of Film and Literature Classification
Office of Parliamentary Counsel
Office of the Director of Public Prosecutions
Office of the Privacy Commissioner
3. Communications, Information Technology and the Arts Portfolio
Department of Communications, Information Technology and the Arts
National Archives of Australia
Australian Government Information Management Office
4. Defence Portfolio
Department of Defence3
Department of Veterans’ Affairs
5. Education, Science and Training Portfolio
Department of Education, Science and Training
Australian Research Council
6. Employment and Workplace Relations Portfolio
Department of Employment and Workplace Relations
Australian Industrial Registry
Equal Opportunity for Women in the Workplace Agency
Seafarers Safety, Rehabilitation and Compensation Authority (Seacare
Authority)
7. Environment and Heritage Portfolio
Department of Environment and Heritage
Australian Greenhouse Office
Bureau of Meteorology
National Oceans Office
Office of the Renewable Energy Regulator
8. Family and Community Services Portfolio
Department of Family and Community Services
Centrelink
9. Finance and Administration Portfolio
Department of Finance and Administration
Australian Electoral Commission
Commonwealth Grants Commission
ComSuper
CSS Board4
PSS Board4 10. Foreign Affairs and Trade Portfolio
Department of Foreign Affairs and Trade
AusAid
Australia-Japan Foundation
Australian Centre for International Agricultural Research
11. Health and Ageing Portfolio
Department of Health and Ageing
Australian Radiation Protection and Nuclear Safety Agency (ARPANSA)
National Blood Authority
Professional Services Review Scheme
12. Immigration and Multicultural and Indigenous Affairs Portfolio
Department of Immigration and Multicultural and Indigenous Affairs
Migration Review Tribunal
Refugee Review Tribunal
13. Industry, Tourism and Resources Portfolio
Department of Industry, Tourism and Resources
Geoscience Australia
IP Australia
14. Prime Minister and Cabinet Portfolio
Department of the Prime Minister and Cabinet
Australian National Audit Office
Australian Public Service Commission
Commonwealth Ombudsman Office
Office of the Inspector-General of Intelligence and Security
Office of the Official Secretary of the Governor-General
15. Transport and Regional Services Portfolio
Department of Transport and Regional Services
National Capital Authority
16. Treasury Portfolio
Department of the Treasury
Australian Bureau of Statistics
Australian Competition and Consumer Commission
Australian Office of Financial Management (AOFM)
Australian Taxation Office
Inspector General of Taxation
National Competition Council
Productivity Commission
17. Parliamentary Departments
Department of the House of Representatives
Department of the Senate
Department of Parliamentary Services
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
(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.scrantonrtg.com/secrc/fsc-codes/fsc.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.tcc.mac.doc.gov/cgibin/doit.cgi?204:66:601961876:49#An1001.1b-2-B.)
- Design, development, integration, test, evaluation, maintenance,
repair,
modification, rebuilding and installation of military systems and equipment
(approximately equivalent to relevant parts of U.S. Product Service Codes A
& J)
- Operation of Government-owned Facilities (approximately equivalent
to U.S.
Product Service Code M)
- Space services (AR, B4 & V3)
- Services in support of military forces overseas
(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 PSS Board or the CSS Board of investment management, investment advisory,
or master
custody and safekeeping services for the purposes of managing and investing
the assets of the
CSS and PSS Funds.
Schedule of the United States
1
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 aa 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:
A$666,000 or US$477,000;
(b) for procurement of construction services:
A$9,396,000 or US$6,725,000.
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 Gambling and Racing Commission
ACT Health
ACT Insurance Authority
ACT Planning and Land Authority
ACT Planning and Land Council
ACT Workcover
ACTION
Australia Capital Tourism Corporation
Chief Minister’s Department
Cultural Facilities Corporation
Department of Disability, Housing and Community Services
Department of Education, Youth and Family Services
Department of Justice and Community Safety
Department of Treasury
Department of Urban Services
Director of Public Prosecutions
Environment Commissioner
Human Rights Office
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
Agriculture and Fisheries Portfolio
Department of Agriculture
New South Wales Fisheries
Rural Assistance Authority
Safe Food Production
Attorney General and Environment Portfolio
Attorney General’s Department
Department of Environment and Conservation
Legal Aid Commission
Office of the Director of Public Prosecutions
Public Trust Office
Commerce and Industrial Relations Portfolio
Department of Commerce
Motor Accidents Authority
Motor Vehicle Repair Industry Authority
WorkCover Authority
Community Services, Ageing, Disability Services, and Youth Portfolio
Commission for Children and Young People
Department of Ageing, Disability and Home Care
Department of Community Services
Office of the Children’s Guardian
Education and Training and Aboriginal Affairs Portfolio
Aboriginal Housing Office
Department of Aboriginal Affairs
Department of Education and Training
Office of the Board of Studies
Energy and Utilities, Science and Medical Research, and Cancer Portfolio
Ministry for Science and Medical Research
Ministry of Energy, Utilities and Sustainability
Gaming and Racing Portfolio
Department of Gaming and Racing
Health Portfolio
Department of Health
Health Care Complaints Commission
Infrastructure and Planning and Natural Resources Portfolio
Department of Infrastructure, Planning and Natural Resources
Sydney Harbour Foreshore Authority
Justice Portfolio
Department of Corrective Services
Juvenile Justice and Planning Administration Portfolio
Department of Juvenile Justice
Heritage Office
Mineral Resources Portfolio
Department of Mineral Resources
Police Portfolio
Ministry for Police
New South Wales Crime Commission
Police Integrity Commission
Premier, Arts, and Citizenship Portfolio
Community Relations Commission
Ministry for the Arts
Ombudsman’s Office
Parliamentary Counsel’s Office
Premier’s Department
State Electoral Office
The Audit Office of New South Wales
The Cabinet Office
Regional Development and Small Business Portfolio
Department of State and Regional Development
Rural Affairs, Local Government, Emergency Services, and Lands Portfolio
Department of Lands
Department of Local Government
Department of Rural Fire Service
New South Wales Fire Brigades
State Emergency Service
Tourism and Sport and Recreation and Women Portfolio
Department for Women
Department of Tourism, Sport and Recreation
Transport Services and Forests Portfolio
Ministry of Transport
State Forests, Forestry Commission
Treasurer and State Development Portfolio
Sydney Olympic Park Authority
NSW Treasury
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
Asian Relations and Trade, Business and Industry, Mines and Energy, Primary
Industry and Fisheries and Defence Support Portfolio
Department of Business, Industry and Resource Development
Indigenous Affairs Portfolio
Aboriginal Areas Protection Authority
Arts and Museums, Community Development, Sport and Recreation, Regional
Development Portfolio
Department of Community Development, Sport and Cultural Affairs
Museum and Art Galleries
Strehlow Centre Board
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
Parks and Wildlife Portfolio
Parks and Wildlife Commission of the Northern Territory
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
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
Aboriginal and Torres Strait Islander Policy Portfolio
Department of Aboriginal and Torres Strait Islander Policy
Attorney-General and Justice Portfolio
Department of Justice and Attorney-General
Public Trustee of Queensland
Child Safety Portfolio
Department of Child Safety
Communities and Disability Services Portfolio
Department of Communities and Disability Services Queensland
Deputy Premier, Treasurer and Sport Portfolio
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
Emergency Services Portfolio
Department of Emergency Services
Queensland Ambulance Service
Queensland Fire Service
Environment Portfolio
Environmental Protection Agency
Queensland Parks and Wildlife Service
Local Government, Planning and Women Portfolio
Department of Local Government, Planning, Sport and Recreation
Sport and Recreation Queensland
Office for Women
Natural Resources, Mines and Energy Portfolio
Department of Natural Resources, Mines and Energy
Police and Corrective Services Portfolio
Queensland Police Service
Department of Corrective Services
Premier and Trade Portfolio
Department of the Premier and Cabinet
Office of the Queensland Parliamentary Counsel
Office of Public Sector Merit and Equity
Primary Industries Portfolio
Department of Primary Industries and Fisheries
DPI Forestry
Public Works, Housing and Racing Portfolio
Department of Public Works
Department of Housing
State Development and Innovation Portfolio
Department of State Development and Innovation
Tourism, Fair Trading and Wine Industry Development
Department of Tourism, Fair Trading and Wine Industry Development
Office of Fair Trading
Transport and Main Roads Portfolio
Department of Transport
Department of Main Roads
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
Department of Treasury and Finance
Independent Gambling Authority
Department of Trade and Economic Development
Department of Primary Industries and Resources SA
Department of Justice
Attorney-General’s Department
Department for Correctional Services
Country Fire Services
Courts Administration Authority
Emergency Services Administrative Unit
South Australian Metropolitan Fire Services
South Australian Police Department
State Electoral Office
Auditor-General’s Department
Department of Human Services
Department of Aboriginal Affairs and Reconciliation
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 and Urban Planning
Transport Services
Transport Planning
Office of Public Transport Board
Planning SA
Office for Sustainable Social, Environmental and Economic Development
Office of Local Government
Department for Administrative and Information Services
State Supply 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 Public Safety
Department of Premier and Cabinet
Department of Primary Industries, Water and Environment
Department of Economic Development
Department of Tourism, Parks, Heritage and the Arts
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 and Training
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
Victorian Auditor-General’s Office
Office of Public Prosecutions
Office of the Chief Commissioner of Police
Office of the Ombudsman
Office of the Commissioner for Public Employment
Essential Services Commission
Office of the Legal Ombudsman
Victorian Electoral Commission
Office of the Privacy Commissioner
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
Agriculture; Forestry and Fisheries; The Midwest, Wheatbelt, and Great
Southern Portfolio
Department of Agriculture
Rural Business Development Corporation of Western Australia
Department of Fisheries
Mid West Development Commission
Wheatbelt Development Commission
Great Southern Development Commission
Attorney General; Health; Electoral Affairs Portfolio
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
Community Development, Women's Interests, Seniors and Youth; Disability
Services; Culture and the Arts Portfolio
Department for Community Development
Disability Services Commission
Department of Culture and the Arts
Consumer and Employment Protection; Indigenous Affairs Portfolio
Department of Consumer and Employment Protection
Department of Indigenous Affairs
Department of the Registrar, Western Australian Industrial Relations
Commission
Education and Training Portfolio
Department of Education and Training
Country High Schools Hostels Authority
Curriculum Council of Western Australia
Department of Education Services
Environment Portfolio
Department of Conservation and Land Management
Botanic Gardens and Parks Authority
Department of Environment
Office of Water Policy
Swan River Trust
Water and Rivers Commission
Zoological Gardens Board
Housing and Works; Racing and Gaming; Government Enterprises; Land
Information Portfolio
Department of Housing and Works
State Supply Commission of Western Australia
Department of Racing, Gaming and Liquor
Local Government and Regional Development; Heritage; the Kimberley, Pilbara
and Gascoyne; Goldfields-Esperance Portfolio
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
Planning and Infrastructure Portfolio
Department for Planning and Infrastructure
Main Roads Western Australia
Western Australian Planning Commission
Public Transport Authority
Department of Land Information
Police and Emergency Services; Justice; Community Safety Portfolio
Fire and Emergency Services Authority of Western Australia
Department of Justice
Office of the Inspector of Custodial Services
Western Australia Police Service
Premier; Public Sector Management; Federal Affairs; Science; Citizenship and
Multicultural
Interests Portfolio
Department of the Premier and Cabinet
Governor’s Establishment
Office of the Public Sector Standards Commission
Salaries and Allowances Tribunal
State Development Portfolio
Department of Industry and Resources
Minerals and Energy Research Institute of Western Australia
Tourism; Small Business; Sport and Recreation; Peel and the South West
Portfolio
Western Australian Tourism Commission
Small Business Development Corporation
Rottnest Island Authority
Recreation Camps and Reserves Board
Department of Sport and Recreation
Western Australian Sports Centre Trust
Peel Development Commission
South West Development Commission
Treasury; Energy Portfolio
Department of Treasury and Finance
Office of Energy
Perth International Centre for Application of Solar Energy
Parliament
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)
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*
ffice 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
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.
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.
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, A$409,000 or US$292,751; or
(ii) of List B entities, US$538,000 ; and
(b) for procurement of construction services for List A and List B entities:
A$9,396,000 or US$6,725,000.
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 Broadcasting Authority
4. Australian Communications Authority
5. Australian Fisheries Management Authority
6. Australian Institute of Criminology
7. Australian Institute of Health and Welfare
8. Australian Institute of Marine Science
9. Australian Law Reform Commission
10. Australian Maritime Safety Authority
11. Australian National Maritime Museum
12. Australian Nuclear Science and Technology Organization
13. Australian Pesticides and Veterinary Medicines Authority
14. Australian Prudential Regulation Authority
15. Australian Securities and Investments Commission
16. Tourism Australia
17. Australian Trade Commission (Austrade)
18. Australian War Memorial3
19. Comcare
20. Commonwealth Scientific and Industrial Research Organisation
21. Corporations and Markets Advisory Committee
22. Export Finance and Insurance Corporation
23. Grains Research and Development Corporation
24. Great Barrier Reef Marine Park Authority
25. Health Insurance Commission
26. Land and Water Resources Research and Development Corporation
27. National Gallery of Australia
28. National Museum of Australia
29. National Occupational Health and Safety Commission
30. Reserve Bank of Australia
31. Sydney Harbour Federation Trust
32. The Director of National Parks
33. 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.
1. 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.
2. 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 |