Decision of the 17th Meeting of the Committee for
Drawing Up and Promoting the Action Program
The Government of Japan, in accordance with the results of recent consultations with the Government of the United States concerning procurement of computer products and services, has decided to initiate the "Measures related to Japanese Public Sector Procurements of Computer Products and Services," as outlined herein.
MEASURES RELATED TO
JAPANESE PUBLIC SECTOR PROCUREMENTS
OF COMPUTER PRODUCTS AND SERVICES
I. General Policies
A. In the interest of expanding trade opportunities based on the principles of non-discrimination, transparency, and fair and open competition in public sector procurements of computer products (including peripherals and packaged software) and computer services (operation and maintenance of computers; input of data into computers; development of computer systems, including development of software and systems integration; maintenance of computer software; and other related services) (collectively referred to as computer Products and Services ), the Government of Japan ("the Government") will strive actively to further improve its public sector procurement procedures Accordingly the Government will initiate these "Measures Related to Japanese Public Sector Procurements of Computer Products and Services" ( the Measures ), set forth herein, with the aim of expanding procurements of competitive foreign computer products and services
B. The Government reaffirms its commitment to the obligations of the General Agreement on Tariffs and Trade (GATT) and the Agreement on Government Procurement, as amended ("the Code") The Measures will be implemented while ensuring consistency with the requirements of the Code, including any amendments thereto
C. In order to implement these policies fully and effectively, the measures will govern all computer products and services procurements above the threshold of 100,000 SDRs, or the Code threshold, as amended, whichever is lower, by entities covered by the Code and additional entities, listed respectively in Annexes I and II attached ("the entities ") Supercomputer procurements will continue to be covered by the 1990 Procedures to Introduce Supercomputers, and will not be covered by the Measures
D. The Government further reaffirms the policies and measures set forth in the 1985 Action Program for Improved Market Access with respect to government procurement, confirms that it will continue to implement such procurement policies in the area of procurements of competitive foreign computer products and services, and welcomes efforts by foreign computer manufacturers to increase their sales in the Japanese public sector market.
E. Implementation
The Measures will become effective on April 1, 1992 with respect to procurements of computer products by entities listed in Annexes I, II-A, II-B, and II-C and on October l, 1992 with respect to procurements of computer services by entities listed in Annexes I and II-A The Government will take steps so that all the entities listed in Annexes II-B and II-C will be covered by the Measures with respect to procurements of computer services by April 1, 1993
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* Computer products include services incidental to the supply or products if the value of these incidental services does not exceed that of the products themselves.
II. Policies and Procedures
The Government herein clarifies certain existing policies and procedures, and establishes and implements new policies and procedures, with respect to public sector computer procurement The Government undertakes these policies and procedures to fully ensure non-discriminatory, transparent, and free and open competitive opportunities, with the aim of expanding its procurements of competitive foreign computer products and services .
Pre-solicitation Phase
Specifications
Explanation Session
Tendering and Bidding Procedures
Evaluation of Bids
(a) Bids will be evaluated on a pass/fail basis based upon the specific technical and other evaluation criteria stated in the specifications. and contracts will be awarded to the lowest-priced bid among those bids which have met the evaluation criteria; or
(b) Contracts will be awarded to the supplier with the bid which meets the evaluation criteria and also best meets the requirements of the specifications in terms of technical and functional, as well as price cost, factors. Relative weights may be applied to the evaluation criteria, as necessary, and as specified in the tender documentation. The price/cost evaluation may be based on the total life cycle cost of the procurement.
Information on the Contract Award
Information on Future Plans
Entity-specific Plans
Bid Protest System
Local Governments
Multi-vendor Open Systems
III. Unfair bids
Given that it is the policy of the Government to procure computer products or services based on bids that are consistent with the Anti-monopoly Act, including the prohibition against unjust low-priced sales, procuring entities will take appropriate actions to address anticompetitive practices.
A. Where a bid is submitted that, because of its price or other terms, unlawfully impedes fair competition, the bid will be deemed void in its entirety and the procuring entity will not consider that bid in arranging the contract.
B. Any bidder that submits a bid referred to in Paragraph III.A above will, as a matter of principle, be deemed ineligible to resubmit a bid in that computer product or service procurement; and the name of such bidder will be announced publicly.
C. When a procuring entity obtains information indicating the existence of practices that may unlawfully impede fair competition in relation to its procurement, including the formulation of its procurement specifications, the entity will provide such information on a timely basis to the Fair Trade Commission so as to enable the Commission to take such steps as it deems appropriate.
D. To this end, the procuring entities will assign a contact person with the Fair Trade Commission to facilitate procedures for the detection of, and exchange of information concerning, practices that may violate the Antimonopoly Act.
AnnexT
<Entities Subject to the WTO Agreement on Government Procurement as of February 1, 2010>
AnnexU(Other Quasi-governmental Agencies)
iNOTE: The entities above are listed only under the names they held as of February 1, 2010, and the names of special corporations before their merger or abolition are not given.j
ANNEX III
COMPLAINT MECHANISM
In order to provide for fair and open competition and to achieve consistency with the provisions of the Measures in procurements of computer products and services, the following complaint process will become effective 30 days after the Measures go into effect.
2.1. The Government will maintain a Procurement Review Board (Board), as an independent reviewing organ, to review complaints by potential suppliers of any aspect of a procurement of a computer product or service subject to the Measures. The Board will have no substantial interest in the outcome of a computer products and services procurement subject to its review
2.2. The Board will receive complaints in writing, conduct investigations of the facts and make recommendations with respect to any aspect of a procurement of a computer product or service by an entity.
2.3. The Board will be comprised of persons who have knowledge, and experience related to public sector procurements. No member of the Board will participate in the review of a complaint in which that member has a conflict of interest.
3.1. A potential supplier may file a complaint with the Board when it believes the procurement has been carried out in a manner inconsistent with the intent or any provision of the Measures. It may also file a complaint based upon the allegation that the contract was awarded to a supplier that had submitted a bid in violation of the Anti-monopoly Act. Potential suppliers are encouraged to seek resolution initially with the entity of any alleged inconsistency with these Measures.
3.2. Timing of Complaints
(l) A complaint may be filed at any time during the procurement process, but no later than 10 days after the basis of the complaint is known or reasonably should have been known. The potential supplier will submit a copy of the complaint to the entity within one day of filing it with the Board.
(2) The Board may consider a complaint, even though not timely filed, if it finds that good cause is shown or that a complaint raises issues significant to the purpose of the Measures.
3 3. The Board will review a complaint within seven days of its filing and may, in writing and with good reasons given, dismiss any complaint found to be:(1) not submitted in timely manner;
(2) not subject to these Measures;
(3) frivolous or trivial on its face;
(4) not submitted by a potential supplier; or
(5) otherwise inappropriate for review by the Board.
3.4. Where the Board determines that a complaint has been filed properly, it will notify in writing all potential suppliers within one working day of the complaint.
3.5. Suspension of award or procurement process
(1) Within 10 days of the filing of a pre-award complaint, the Board will issue written requests for suspension of the procurement process pending resolution of the complaint.
(2) Within 10 days of the filing of a post-award complaint, the Board will request in writing suspension of performance of the contract pending resolution of the complaint.
(3) The entity will, as a matter of principle, suspend the procurement process or performance of the contract immediately after it receives the Board's request, unless the head of the entity determines that urgent and compelling circumstances do not allow the entity to follow the request, in which case he will immediately inform the Board of his determination.
3.6. Investigation
(1) The Board will conduct an investigation of the complaint, which may include the filing of briefs, pleadings and other documentation by the complainant and entity.
(2) The Board may, on the request of the complainant or entity or on the Board's own initiative, hold a hearing on the merits of a complaint.
3.7. Entity Report
(1) Within 25 days after the day on which a copy of the complaint was sent to the entity, it will file with the Board a complete written report on the complaint, containing the following:
(a) the solicitation, including the specifications or portions thereof relevant to the complaint;
(b) all other documents relevant to the complaint;
(c) a statement that sets out all findings, actions and recommendations of the entity and responds fully to all allegations of the complaint; and
(d) any additional evidence or information that may be necessary in order to resolve the complaint.
(2) The Board will, forthwith after receiving the report referred to in (l) above, send a copy or the relevant material to the complainant and give the complainant an opportunity, within seven days after it receives the relevant material, to file with the Board comments or request that the case be decided on the existing record. The Board will, forthwith after receiving the comments, send a copy to the entity.
3.8. Participants: The entity and potential suppliers whose direct economic interest would be affected by the award of, or the failure to award, a contract may participate in a complaint proceeding.
4.1. The Board will make a report of its findings and recommendations within 90 days after the day on which the complaint is filed. Its findings, in which the Board will grant or deny the complaint in whole or in part, will specify whether the procurement process or award was inconsistent with the intent or specific provisions of the Measures.
4.2. (l) Where the Board finds that there is a significant likelihood that a contract was awarded to a supplies that had submitted a bid that contravened the prohibition in the Anti-monopoly Act against unjust low-priced sales, it will report the case to, and request that, the Fair Trade Commission (FTC) determine whether or not the Anti-monopoly Act has been violated and take appropriate measures.
(2) Pending the notification by the FTC of its final findings, the Board will request the entity to suspend performance of the contract With this request, the entity, 25 a matter of principle, will suspend performance of the contract. Upon receipt of the FTC's notification, the Board will complete its review of the complaint and where the FTC found a violation of the Anti-Monopoly Act, the Board will recommend that the entity adopt a remedy set forth in 4.4 below.
4.3. In making its findings and recommendations, the Board will consider all the circumstances surrounding the procurement process or award, including the seriousness of the deficiency in the procurement process, the degree of prejudice to all potential suppliers or to the integrity and effectiveness of the Measures, the good faith of the participants and the extent of performance of the contract to which the procurement relates.
4.4. Where the Board finds that the intent or any provision of the Measures has not been realized, it may recommend an appropriate remedy, including one or more of the following:
(l) that a new tender package be issued;
(2) that new bids for the contract be sought;
(3) that the bids be re-evaluated;
(4) that the contract be awarded to another supplier; or
(5) that the contract be terminated.
4.5. The Board will send its findings in writing with its recommendations to the complainant, the entity and any other potential suppliers, within one working day after issuance. The Ministry of Foreign Affairs will respond to external inquiries concerning the findings.
4.6. Where the entity does not follow the Board's recommendation. the entity will send a copy of its decision, and the rationale for it, to the Board within one working day after issuance. The Ministry of Foreign Affairs will respond to external inquiries concerning the decision.
4.7. Whenever the Board discovers evidence of misconduct, or contrary to law or regulation, such evidence will be referred to law enforcement authorities for appropriate action.
5.1. Where the complainant or entity requests in writing an expeditious handling of a complaint, the Board will consider the feasibility focusing the procedure set out in this section, referred to, herein as the "express option."
5.2. The Board will determine whether to apply the express option within two working days after receiving a request therefore and will notify the complainant and entity as to whether the express option is to be applies.
5.3. Where the express option is applied, the time limits and procedures will be as follows:
(1) The entity will, within 10 days after the day on which it is notified by the Board that the express option is to be applied, file with the Board a complete report on the complaint, as specified in Section 3.7. The Board will forthwith after receiving the report, send a copy of the relevant material to the complainant. The Board will give the complainant five days to file with the Board comments on such material or request that the case be decided on the existing record. The Board will, forthwith after receiving the comments, send a copy to the entity.
(2) The Board will issue its findings and recommendations on the complaint in writing within 45 days after the day on which the complaint is filed.