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UNITED STATES - AUSTRALIA
FREE TRADE AGREEMENT
 

[ Index > Chapters > 1-13 > 14-23 > ]

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