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Regulations For The Implementation Of Gatt Agreement On Government Procurement

Original Language Title: Forskrifter for gjennomføring av Gatt-avtalen om offentlige innkjøp

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Regulations for the implementation of Gatt Agreement on Government Procurement.


Date FOR-1981-11-19-8761


Ministry of Industry and Ministry of Fisheries

Published


Commencement


Edited

FOR 2013-03-15-284 from 01.07.2013

Changes


For
Norway

Legal
FOR 1978-03-17-5

Promulgated


Short Title
Regulations for implementing the Gatt agreement

Chapter Overview:

1. Introduction.
2. Guidelines scope.
3. National treatment and non-discrimination.
4. Relationship to Buy regulations.
5. Information and investigation.

Adopted by the Ministry of Industry (now Ministry of Trade and Industry) on 19 November 1981. These guidelines replace the guidelines of 19 December 1980.
Changes: Amended by regulations 22 November 1996 No.. 1082, 15 March 2013 No. . 284 (effective July 1, 2013).

1. Introduction.

These guidelines set by the Ministry of Industry pursuant to § 1 of the regulations for the purchase of goods and services to the State (hereinafter purchase regulations) laid down by Royal Decree. of 17 March 1978 as amended by Royal Decree. of 19 December 1980.
Norway has acceded to the GATT Agreement on public procurement (hereinafter referred to as the Agreement). With a view to fulfilling its provisions were on 19 December 1980 made certain changes to Buy regulations. It was introduced an addition to § 1 which states that the agencies and the purchases that fall under the Agreement shall Agreement rules apply beside Buy Regulations. Furthermore, it Buy Code concerning §§ 8, 20, 21 and 24 made certain changes as it is explained in paragraph 4 below.
In the event of doubt as to how certain points in these guidelines should be understood, the agencies turn to the Ministry of Industry for further clarification.

2. Guidelines scope.

In accordance with the Agreement are these guidelines scope limited to

A)
contracts of more than 150,000 SDRs (the International Monetary Fund special drawing rights)

B)
agencies that are listed in Annex 1 to the Agreement, and

C)
countries that have acceded to the agreement.

Agreement covers purchases. Services will only be included insofar as they relate to deliveries of goods and their value does not exceed the value of the goods. Research and development contracts thus falls outside the scope of the Agreement. For purchases of goods as the result of a research and development contract special rules apply, see. Section 4 below.
Limit of 150,000 SDR represents approximately 1 million, but the krone value may vary due to exchange rate changes. Industry Ministry determines the exchange rate that applies to each calendar year ahead.
The agencies have sole discretion in each case whether a purchase is expected to come over the limit so that notice shall be formulated by the GATT Agreement rules. The ruleset that announcement sets out will be followed also if the ratio of the final contract value and the amount spent is a different than expected at the announcement.
The agreement also determines that no purchase must be split up with the intention of reducing the value of the contracts for amounts less than the limit. If a need for procurement of goods or goods of the same type results in the making of more than one contract or in contracts entered into separate parts, the value of these contracts in the twelve months following the first contract entered into, form the basis for the application agreement.
Upon entry into force January 1, 1981 were the following countries members: Austria, Canada, the European Community (except Greece), Hong Kong, Singapore, Japan, Norway, Sweden, Finland, Switzerland and United States. It will be notified by the Ministry of Industry of any change in the membership agreement.
Purchase of weapons, ammunition, munitions or materials that are indispensable for national security or national defense is, pursuant to the Agreement Article VIII, except from agreement. The same is true for measures necessary to protect public morals, order or safety, human, animal or plant life or health, intellectual property rights or measures relating to goods manufactured by handicapped persons, charitable institutions or prison inmates. The assumption is that such measures are not applied in a manner which may involve an arbitrary or unjustifiable discrimination between countries where the same conditions prevailing.
The agencies listed in Annex 1 to the Agreement and that it should apply to, the following:

1.
NPRA.

2.
Government procurement centrally.

3.
State postal company.

4.
Rikshospitalet.

5.
University of Oslo.

6.
Police.

7.
Norwegian Broadcasting Corporation.

8.
University of Trondheim.

9.
University of Bergen.

10.

Coastal Administration.

11.
University of Tromsø.

12.
Environment Directorate.

13.
Aviation Administration.

14.
Defense Ministry. *

15.
Army Medical. *

16.
Air Force Material Command. *

17.
Army Material Command. *

18.
Navy Material Command. *

19.
Armed Forces Joint Material Service. *

Regional and local departments of these agencies are also subject to the provisions of the Agreement.
For defense agencies (marked *) guidelines apply only to procurement of the following goods:
Completion Materials:

-
Office machinery and equipment, furniture, teaching materials, as well as sports, welfare and other non-technical material.

Continuing supplies.

-
Technical consumables

-
Medical and dental materials and equipment,

-
Fixtures to kitchen and Exhibition,

-
Stationery and office supplies,

-
Publications and

-
Musical.

Fuel Substances:

-
Fuels, lubricants and other oil products.

Motor vehicles:

-
Passenger Cars and transport vehicles,

-
Ambulances,

-
Firetrucks,

-
Vehicles for use in aviation service and

-
Vehicles for specific purposes.

Other facilities:

-
Navigation equipment,

-
Parachute equipment,

-
Rescue equipment,

-
Photographic equipment,

-
Pyrotechnic devices,

-
Electrical spare aggregate

-
Equipment base, workshop, hangar and depot

-
Chemical / radiological equipment and

-
Abc-security protection, workshops and depots.

Medical and dental instruments.
Food Supply Equipment.

-
Fixed operating equipment for kitchens, cafeterias, conference rooms, food supply places and depots.

3. National treatment and non-discrimination.

Article II of the agreement stipulates that foreign and national services should be treated equally without any discrimination. This is a central principle of agreement and stipulates that a foreign supplier, insofar as he gives an offer of a procurement that fall under the agreement shall receive a treatment no less favorable than that given to domestic suppliers or suppliers of another country.
According to a note to the agency list, Annex 1 of the Agreement, however, the principle of national treatment may be waived when a particular transaction may impair important national goals. It is a condition that the decision to purchase under this exemption must be decided on the level of cleaning. An agency that will make a purchase under this exemption must therefore put the proposal submitted to the authorities.

4. Relationship to Buy regulations.

Regulations for the purchase of goods and services to the state also applies to purchases that come under the Agreement.
The agreement contains provisions which are intended to expand the international trade and ensure that suppliers in each member country is guaranteed opportunities to participate in the tender procedure in another Member State. This general scope means that the rules of the Agreement primarily concerns the part of the bidding process that includes information about planned purchases, the forms for obtaining tenders and procedures needed to ensure that foreign and domestic suppliers can compete on an equal basis.
On most points, there is no inconsistency between this Agreement and Buy regulations' rules, but at certain points it has been necessary to adapt the regulatory provisions of the Agreement. This applies regulatory §§ 8, 20, 21 and 24. Referring to the changes made in these paragraphs. With these changes should Buy Code concerning rules shall apply to the purchases made by the Norwegian authorities.
Beyond Buy Regulations, however, contain some agreement supplementary rules that also must be addressed when purchases also come under the Agreement. Referring to comments under the individual sections where the main supplementary rules are commented.
Code concerning § 2.
After Sales Regulations, the purchase of goods and services take place either

A)
after a tender

B)
by negotiation or

C)
as direct purchases.

After GATT Article V § 1 may purchase made by following procedures:

-
Open invitations to tender,

-
Selective tendering or

-
Simple invitations to tender.

There is no conflict between Buy regulations' and Agreement rules when it comes to purchasing ways. Acquisitions shall be made as provided in the Purchase Code concerning § 2 even if they fall under the Agreement.

Agreement stipulates, however, special procedures for obtaining bid or proposal. Especially for limited (selective) tenders deviates these procedures from that otherwise apply by Buy Regulations, cf. discussion under § 8
Code concerning § 3
According Buy Code concerning § 3, 4th paragraph, the buyer may, when he deems it necessary, decide that only bidders with specific qualifications to participate in the tender.
Agreement in Article V § 2 provisions on qualification of suppliers. Besides a general requirement of non-discrimination in the qualification, contains Agreement special rules for qualification procedures and for keeping lists of qualified suppliers. When such formal approval of the contractor's qualifications not normally used by the Norwegian state agencies, one finds no reason to render the rules on this point. If an agency exceptionally wish to make such formal approval, the regulations of the Agreement Article V § 2 followed.
Code concerning § 4.
Agreement's provisions on technical specifications are more detailed than Buy regulations' rules. Referring to the Agreement Article IV.
Code concerning § 5.
After regulatory § 5, 1st paragraph, the Ministry of Industry in certain cases decide that competition for contracts should be limited "if this does not conflict with obligations under international treaties."
Provision also applies to purchases which fall under the agreement, albeit under the rules specified in the agreement. It refers in this connection to point 2 above (the general exceptions provisions of the Agreement) and to point 3 above (on the note to agency list in Annex 1).
Code concerning § 8
After Agreement Article V § 3 shall tenders announced. This is consistent with the general rule in Buy Code concerning § 8
Agreement Article V § 4 specifies what information notice should contain. Man pointing out particularly that it be made public a summary of the announcement on one of the official languages ​​of the GATT (English, French or Spanish). Furthermore, the announcement, according to a decision of the GATT Committee for public procurement, have a headline that announces US Agreement rules shall apply.
It is recommended that the following headline used: "Announcement of purchases that fall under the GATT agreement."
After regulatory § 8, second paragraph, tenders take place in writing to a limited number of suppliers. Tender Invitation directed to a limited group of suppliers is permitted also under the Agreement, but it is a requirement that invitations in such cases, like the open tender will be announced if the agency does not select a limited number of suppliers from a list of "qualified suppliers" , set up in accordance with the Agreement Article V 2, ref. comments under the regulations, § 3 above. One has therefore found it necessary to add a provision in the Purchase Code concerning § 8 that the provisions of section's subsection shall not apply when purchasing that fall under the Agreement.
Tender-gathering using "selective tendering procedure" are time and labor intensive, the agency must first announce an invitation to apply for participation in the tender procedure and then provide the selected applicants a reasonable period to submit tenders. In both halves will tender shall be at least thirty days. Ministry of Industry therefore assumes that selective tendering will be under-utilized by Norwegian agencies when purchasing falling under the Agreement. The great majority of purchases are expected to be conducted by open tendering.
One note the admission of the Agreement in Article V § 15 allows for direct communication to potential suppliers, we need to provide a special report, ref. Agreement art. V § 16
Code concerning § 9
Mostly it consistent between Buy Code concerning § 9 and the Agreement Article V, § 12 in terms of the information to be included in the tender documents.
According to the Agreement shall be anbudsgrunnlaget include the following information in addition to what is stated in Buy Code concerning § 9:

A)
The language or languages ​​in which tenders and tendering documents must be written in,

B)
those persons who are entitled to be present at the opening of tenders,

C)
criteria for awarding the contract, including factors other than price, which will be taken into consideration when the tenders and the cost elements that will be included in the assessment of tender price, such as transport, insurance and inspection costs and in the case of foreign goods, customs duties and other import charges, taxes and currency of payment.

Regulations' § 10.

Buy Regulations stipulates that there should be a spacious deadline for submission of tenders. Agreement has similar provision. After Agreement Article V § 10 the deadline for receipt of tenders by open and selective tendering shall be not less than thirty days from the date of publication.
Code concerning § 15.
After buying regulations shall be notified to those who have not gotten their tenders assumed. It set no deadline for such notification. The agreement stipulates a period of seven working days from the date the contract was awarded.
Regulations' § 17
The main rule when purchasing by competitive bidding for Buy Regulations is that the tender with the lowest price shall be selected. This is in accordance with the Agreement Article V § 14 f.
Code concerning §§ 18 and 19.
Purchasing shape "buy after bargaining" can be used also by purchase of falling under the Agreement, with the adaptations arising under the Agreement , ref. comments to Buy Code concerning §§ 20, 21, 24 and 28 below.
Regulations' § 20
After Buy Code concerning § 20 shall obtaining bids on purchases by negotiation usually made by direct request to the appropriate providers. This is not in accordance with the Agreement rules on invitations to tender. It has therefore been necessary to an amendment to the regulations, § 20 (new 6th paragraph). It is determined here that upon purchase falling under the Agreement, obtaining bids usually effected by public notice.
Exceptions public announcement can be made in the case covered by the Agreement Article V § 15 contacting one supplier), or if the agency uses a list of "qualified suppliers," which is set up in accordance with the Agreement Article V 2, ref. commentary under the regulations, § 3 above.
Regulations' § 21
After Buy Code concerning § 21 requires that the request be stated that the public opening of the tenders will take place. This is not in accordance with the Agreement rules on tender opening. It has therefore been necessary to an amendment to the regulations, § 21 which states that this rule does not apply when purchasing that fall under the Agreement.
Regulations' § 24
When it comes time limit, refer to the commentary to § 10.
For purchases after negotiating terms for Buy Regulations no rules on public opening of tenders.
After Article V § 14d shall opening of tenders always happen in specific shapes. It has therefore been necessary to add a provision on this in the regulations, § 24. It has been deemed appropriate to use the Agreement's own formulation at this point.
Regulations' § 28
The main rule when buying after negotiation by Buy Regulations is that when choosing a supplier should seek to arrive at a most advantageous purchase. This is in accordance with the Agreement Article V § 14 f. After buying regulations consideration shall be given to price, quality and other factors that may be relevant to the question, as consideration for the operating and maintenance costs, etc. After agreement must choose either " the lowest tender or the tender which, according to the specific evaluation criteria specified in the notices or tender documentation is found to be the most advantageous. "the agencies must therefore, when buying that fall under the agreement, stick to the evaluation criteria mentioned in the notices or in the tender documentation. This means that the agencies must be particularly attentive when designing notice and tender documentation so that all the assessment criteria that could conceivably would be emphasized, are included.
Regulations' § 30
In principle, direct purchase is also used with the purchase coming under the Agreement, ref. Article V § 15. When agreement only applies to the purchase with a contract value of SDR 150,000 or more, however, will most direct purchases fall outside the agreement.
Agencies shall prepare a written report on each procurement undertaken under the provisions of the Agreement Article V § 15, ref. Article V § 16
Code concerning § 44.
Research and development contracts fall outside the agreement, as the Agreement does not include services. This also applies to limited production of a new product to incorporate the results of research on the area and to show that the product is suitable for mass production to acceptable quality standards. The exemption does not include mass production to achieve commercial viability or to recover research or development costs. Please see paragraph 2 above and to the footnote to the Agreement Article V § 15 e.

5. Information and investigation.


Article VI of the Agreement contains provisions on the duty to provide information so that as far as possible to be able to check that the requirement of non-discrimination. Especially highlighted the provisions on the creation of a contact point where providers who do not come into consideration can turn to discussion of the case, and the provisions on the preparation of statistics.
Agencies shall keep statistics on their purchases. Within the 1 May each year, the agencies must submit statistics for the preceding year to the authority that the Ministry of Industry decides. The statistics shall include

A)
value of contracts awarded above and below the threshold

B)
number and total value of contracts awarded above the threshold, divided into 26 product categories and works opprinnelsesland.1

C)
the total number and value of contracts awarded under each of the cases in Article V § 15 (use of invitations to tender to a single vendor).

Will be prepared in a form that agencies should use when reporting.