1. A procuring entity shall receive, open and treat all tenders under procedures that guarantee the fairness and impartiality of the procurement process and the confidentiality of tenders.
2. 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.
3. If a procuring entity provides a supplier with an opportunity to correct unintentional errors of form between the opening of tenders and the awarding of the contract, the procuring entity shall provide the same opportunity to all participating suppliers.
4. To be considered for an award, a tender must be submitted in writing and must, at the time of opening, comply with the essential requirements set out in the notices and tender documentation and be from a supplier that satisfies the conditions for participation.
5. Unless a procuring entity determines that it is not in the public interest to award a contract, the entity shall award the contract to the supplier that the entity has determined to be capable of fulfilling the terms of the contract and that, based solely on the evaluation criteria specified in the notices and tender documentation, has submitted:
(a) the most advantageous tender; or
(b) if price is the sole criterion, the lowest price.
6. If a procuring entity receives a tender with a price that is abnormally lower than the prices in other tenders submitted, it may verify with the supplier that it satisfies the conditions for participation and is capable of fulfilling the terms of the contract.
7. A procuring entity shall not use options, cancel a procurement or modify awarded contracts in a manner that circumvents the obligations under this Chapter.
Article 11.15: Transparency of Procurement Information
1. A procuring entity shall promptly inform participating suppliers of the entity’s contract award decisions and, on the request of a supplier, shall do so in writing. Subject to paragraphs 2 and 3 of Article 11.16, a procuring entity shall, on request, provide an unsuccessful supplier with an explanation of the reasons why the entity did not select its tender and the relative advantages of the successful supplier’s tender.
2. No later than 72 days after the award of each contract covered by this Chapter, a procuring entity shall publish a notice in the appropriate paper or electronic medium listed in Section H of the Party’s Schedule to Annex 11-A. If the entity publishes the notice only in an electronic medium, the information shall remain readily accessible for a reasonable period of time. The notice must include at least the following information:
(a) a description of the goods or services procured;
(b) the name and address of the procuring entity;
(c) the name and address of the successful supplier;
(d) the value of the successful tender or the highest and lowest offers taken into account in the award of the contract;
(e) the date of award; and
(f) the type of procurement method used, and in cases in which limited tendering was used in accordance with Article 11.12, a description of the circumstances justifying the use of limited tendering.
3. Each procuring entity shall maintain the documentation, records and reports relating to tendering procedures and contract awards for covered procurement, including the records and reports provided for in Article 11.12, for a period of at least three years from the date it awards a contract.
Article 11.16: Disclosure of Information
1. On request of the other Party, a Party shall provide promptly any information necessary to determine whether a procurement was conducted fairly, impartially and in accordance with this Chapter, including information on the characteristics and relative advantages of the successful tender. In cases in which release of the information would prejudice competition in future tenders, the Party that receives the information shall not disclose it to any supplier, except after consulting with, and obtaining the agreement of, the Party that provided the information.
2. Notwithstanding any other provision of this Chapter, a Party, including its procuring entities, shall not provide to any particular supplier information that might prejudice fair competition between suppliers.
3. This Chapter does not require a Party, including its procuring entities, authorities and review bodies, to disclose information if disclosure:
(a) would impede law enforcement;
(b) might prejudice fair competition between suppliers;
(c) would prejudice the legitimate commercial interests of particular persons, including the protection of intellectual property; or
(d) would otherwise be contrary to the public interest.
Article 11.17: Ensuring Integrity in Procurement Practices
1. Each Party shall ensure that criminal, civil or administrative measures exist to address corruption, fraud and other wrongful acts in its government procurement.
2. These measures may include procedures to debar, suspend or declare ineligible from participation in a Party’s procurements, either indefinitely or for a stated period of time, a supplier that the Party has determined to have engaged in corruption, fraud or other wrongful acts relevant to a supplier’s eligibility to participate in the Party’s government procurement.
3. Each Party shall ensure that it has in place measures to address potential conflicts of interest on the part of those engaged in or having influence over a procurement.
Article 11.18: Domestic Review Procedures
1. Each Party shall provide a timely, effective, transparent and non-discriminatory administrative or judicial review procedure through which a supplier may challenge:
(a) a breach of this Chapter; or
(b) if the supplier does not have a right to challenge directly a breach of this Chapter under the domestic law of a Party, a failure to comply with a Party’s measures implementing this Chapter,
arising in the context of a covered procurement, in which the supplier has, or has had, an interest. The procedural rules for all challenges shall be in writing and made generally available.
2. In the event of a complaint by a supplier, arising in the context of covered procurement in which the supplier has, or has had, an interest, that there has been a breach or a failure as referred to in paragraph 1, the Party of the procuring entity conducting the procurement shall encourage the procuring entity and the supplier to seek resolution of the complaint through consultations. The procuring entity shall accord impartial and timely consideration to any complaint in a manner that is not prejudicial to the supplier’s participation in ongoing or future procurement or its right to seek corrective measures under the administrative or judicial review procedure.
3. Each supplier shall be allowed a sufficient period of time to prepare and submit a challenge, which in no case shall be less than 10 days from the time when the basis of the challenge became known or reasonably should have become known to the supplier.
4. Each Party shall establish or designate at least one impartial administrative or judicial authority that is independent of its procuring entities to receive and review a challenge by a supplier arising in the context of a covered procurement.
5. If a body other than an authority referred to in paragraph 4 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 whose procurement is the subject of the challenge.
6. Each Party shall ensure that a review body that is not a court shall have its decision subject to judicial review or have procedures that provide that:
(a) the procuring entity shall respond in writing to the challenge and disclose all relevant documents to the review body;
(b) the participants to the proceedings (hereinafter referred to as “participants”) have the right to be heard prior to a decision of the review body being made on the challenge;
(c) the participants have the right to be represented and accompanied;
(d) the participants have access to all proceedings;
(e) the participants have the right to request that the proceedings take place in public and that witnesses may be presented; and
(f) the review body shall make its decisions or recommendations in a timely fashion, in writing, and shall include an explanation of the basis for each decision or recommendation.
7. Each Party shall adopt or maintain procedures that provide for:
(a) rapid interim measures to preserve the supplier’s opportunity to participate in the procurement. Those interim measures may result in suspension of the procurement process. The procedures may provide that overriding adverse consequences for the interests concerned, including the public interest, may be taken into account when deciding whether those measures should be applied. Just cause for not acting shall be provided in
writing; and
(b) if a review body has determined that there has been a breach or a failure as referred to in paragraph 1, corrective action or compensation for the loss or damages suffered, which may be limited to either the costs for the preparation of the tender or the costs relating to the challenge, or both.
Article 11.19: Modifications to Schedules to Annex 11-A
1. A Party shall notify any proposed modification to its Schedule to Annex 11-A in writing to the other Party.
2. The notification of proposed modification must contain:
(a) for a proposed modification concerning the withdrawal of a procuring entity from its Schedule to Annex 11-A in exercise of its rights on the grounds that government control or influence over the procuring entity’s covered procurement has been effectively eliminated, evidence of that elimination; or
(b) any compensatory adjustments to be provided pursuant to paragraph 3.
3. Except as provided for in paragraph 4, a Party shall provide appropriate compensatory adjustments to maintain the level of coverage that existed prior to the modification.
4. A Party is not required to provide compensatory adjustments if the proposed modification:
(a) concerns the withdrawal of a procuring entity from the Party’s Schedule to Annex 11-A in exercise of its rights on the grounds that government control or influence over the procuring entity’s covered procurement has been effectively eliminated; or
(b) is minor or of a purely formal nature, such as:
(i) a change in the name of a procuring entity;
(ii) a merger of two or more procuring entities listed within a Section of a Party’s Schedule to Annex 11-A;
(iii) a separation of a procuring entity listed in a Party’s Schedule to Annex 11-A into two or more procuring entities that are added to the procuring entities listed in the same Section of the Annex; or
(iv) a change in references to a website relating to the procuring entity.
5. If the other Party does not agree that:
(a) a compensatory adjustment proposed under paragraph 3 maintains the level of coverage that existed prior to the modification; or
(b) the proposed modification is a modification provided for in subparagraph 4(a) or 4(b),
it shall notify the modifying Party of its objection in writing within 30 days of receipt of the notification of proposed modification referred to in paragraphs 1 and 2, or be deemed to have accepted the proposed modification, including for the purposes of Chapter 27 (Dispute Settlement).
6. The Parties shall make every attempt to resolve any objection through dialogue.
7. The Joint Committee shall adopt a modification to the Schedule to Annex 11-A in accordance with Article 26.2 (Administrative and Institutional Provisions – Functions of the Joint Committee) to reflect any agreed modification.
Article 11.20: Environmental, Social and Labour Considerations
1. The Parties recognize the role of government procurement in:
(a) advancing environmental and climate change objectives, including those set out in the Paris Agreement, done at Paris on 12 December 2015;
(b) creating opportunities for socially or economically disadvantaged persons; and
(c) promoting internationally recognized labour principles and rights, including those set out in the International Labour Organization Declaration on Fundamental Principles and Rights at Work.
2. For greater certainty, a Party, including its procuring entities, may take into account environmental, socio-economic, or labour-related considerations in the procurement process, including through conditions for participation, technical specifications or evaluation criteria, provided that those considerations are not applied in a manner that constitutes a means of arbitrary or unjustifiable discrimination between the Parties or a disguised restriction on trade between the Parties.
Article 11.21: Facilitation of Participation by Small and Medium-Sized Enterprises2
1. The Parties recognize the important contribution that small and medium-sized enterprises can make to economic growth and employment and the importance of facilitating the participation of small and medium-sized enterprises in government procurement.
2. The Parties also recognize the importance of business alliances between suppliers of a Party and in particular small and medium-sized enterprises, including joint participation in procurement procedures.
3. If a Party maintains a measure that provides preferential treatment for small and medium-sized enterprises, the Party shall ensure that the measure, including the criteria for eligibility, is transparent.
4. To assist, promote, encourage or facilitate the participation by small and medium-sized enterprises in covered procurement, each Party shall endeavour, if appropriate, and using the means available, to:
(a) ensure that information on how to participate in government procurement is readily available;
(b) make all tender documentation available free of charge;
(c) conduct procurement by electronic means, including through new information and communication technologies;
(d) consider the size, design and structure of the procurement, including subcontracting with small and medium-sized enterprises; and
(e) promote prompt payment upon satisfactory provision of the goods or services.
Article 11.22: Cooperation in Government Procurement
The Parties recognize the importance of cooperation in helping to ensure the effective implementation of this Chapter. Taking into account the available and existing instruments, resources and mechanisms, the Parties shall, to the extent possible, cooperate and exchange experiences, best practices and information, including through networks, seminars and workshops, in matters such as:
(a) the collection and reporting of statistical data;
(b) institutional strengthening for compliance with the provisions of this Chapter, including training of public officials;
(c) training and technical assistance on access to the government procurement market;
(d) sustainable procurement practices; and
(e) streamlining and simplifying procurement processes to facilitate the participation of suppliers in government procurement.
2 For greater certainty, for Ecuador small and medium-sized enterprises include the Actors of the Popular and Solidarity Economy.
Article 11.23: Committee on Government Procurement
1. The Parties hereby establish a Committee on Government Procurement, composed of government representatives of each Party. On request of a Party, the Committee shall meet to:
(a) exchange information related to the government procurement opportunities in each Party and statistical data relevant to the procurement covered by this Chapter;
(b) report to the Joint Committee on the implementation and administration of this Chapter, as appropriate;
(c) discuss and follow up on any cooperative activities;
(d) discuss any other matter related to the implementation or operation of this Chapter.
2. Each meeting shall take place, either in person or virtually, on a date, at a place (if in person) and according to an agenda as decided by the Parties.
Chapter 12. ENVIRONMENT
Article 12.1: Definitions
For the purposes of this Chapter:
environmental laws means a statute or regulation of a Party, or provision thereof, including any that implements the Party’s obligations under a multilateral environmental agreement, the primary purpose of which is the protection of the environment, or the prevention of a danger to human life or health, through:
(a) the prevention, abatement or control of, the release, discharge or emission of pollutants or environmental contaminants;
(b) the control and management of environmentally hazardous or toxic chemicals, substances, materials or wastes, and the dissemination of information related thereto;
(c) the conservation of biological diversity, which includes the protection of wild flora or wild fauna, endangered species and their habitat, protected natural areas and natural ecosystems;1 or
(d) the mitigation of climate change and adaption to its effects,
but does not include a statute or regulation, or provision thereof, directly related to worker safety or health, nor any statute or regulation, or provision thereof, the primary purpose of which is managing the subsistence or aboriginal harvesting of natural resources; and
statute or regulation means:
(a) for Canada, an Act of the Parliament of Canada or regulation made under an Act of the Parliament of Canada that is enforceable by action of the central level of government; and
(b) for Ecuador, a law approved by the National Assembly or an Executive Decree of the Presidente of the Republic, promulgated as established by the Constitución de la República del Ecuador (Constitution of the Republic of Ecuador).
Article 12.2: Context and Objectives
1. The Parties recognize that a healthy environment is an integral element of sustainable development and recognize the contribution that trade makes to sustainable development.
2. The Parties recognize that the objectives of this Chapter are to:
(a) promote mutually supportive trade and environmental policies and practices;
1 For the purposes of this Chapter, the term “protected natural areas” and “natural ecosystems” means those areas as defined by the Party in its law.
(b) promote high levels of environmental protection, including the sustainable management of natural resources, considering the Parties’ respective levels of development and capacities, and effective enforcement of environmental laws; and
(c) enhance the capacities of the Parties to address trade-related environmental issues, including through cooperation, in the furtherance of sustainable development.
3. Taking into account differences in their respective levels of development, national priorities, and circumstances, the Parties recognize that enhanced cooperation to protect and conserve the environment and the sustainable use and management of their natural resources bring benefits that can contribute to sustainable development, strengthen their environmental governance, support implementation of multilateral environmental agreements to which they are a party and complement the objectives of this Agreement.
4. The Parties recognize that the environment plays an important role in the economic, social and cultural well-being of Indigenous Peoples and rural or remote communities, and acknowledge the importance of engaging with these groups in the long term conservation of the environment while taking a gender responsive and inclusive approach.
5. The Parties recognize that it is inappropriate to establish or use their environmental laws or other measures in a manner which would constitute a disguised restriction on trade or investment between the Parties.
Article 12.3: General Commitments
1. The Parties recognize the importance of mutually supportive trade and environmental policies and practices to improve environmental protection in the furtherance of sustainable development.
2. The Parties recognize the sovereign right of each Party to establish its own levels of domestic environmental protection and its own environmental priorities, and to establish, adopt or modify its environmental laws and policies accordingly.
3. Each Party shall endeavour to ensure that its environmental laws and policies provide for, and encourage, high levels of environmental protection and shall endeavour to continue to improve its respective levels of environmental protection, taking into account its level of development and capacity.
4. Each Party shall take into account relevant scientific and technical information and related international standards, guidelines or recommendations when preparing and implementing measures aimed at environmental protection that may affect trade or investment between the Parties.
5. A Party shall not fail to effectively enforce its environmental laws through a sustained or recurring course of action or inaction2 in a manner affecting trade or investment between the Parties.3,4
6. The Parties recognize that each Party retains the right to exercise discretion and to make decisions regarding:
(a) investigatory, prosecutorial, regulatory and compliance matters; and
(b) the allocation of environmental enforcement resources with respect to other environmental laws determined to have higher priorities.
Accordingly, the Parties understand that, with respect to the enforcement of environmental laws, a Party is in compliance with paragraph 4 if a course of action or inaction reflects a reasonable exercise of that discretion, or results from a decision regarding the allocation of those resources that was taken in good faith and in accordance with the priorities of that Party to enforce environmental laws.
7. Without prejudice to paragraph 2, the Parties recognize that it is inappropriate to encourage trade or investment by weakening or reducing the protection afforded in their respective environmental laws. A Party shall not waive or otherwise derogate from, or offer to waive or otherwise derogate from, its environmental laws in a manner that weakens or reduces the protection afforded in those laws in order to encourage trade or investment between the Parties.
8. This Chapter does not authorize a Party’s authorities to undertake environmental laws enforcement activities in the territory of the other Party.
Article 12.4: Public Information and Participation
1. Each Party shall promote public awareness of its environmental laws and policies, including enforcement and compliance procedures, by ensuring that relevant information is available to the public.
2. Each Party shall provide for the receipt and consideration of written questions or comments from a person of that Party regarding its implementation of this Chapter. Each Party shall respond in a timely manner to these questions or comments in writing and in accordance with its procedures, and make the questions, comments, and responses available to the public, including by publishing them on an appropriate public website.
2 For greater certainty, a “sustained or recurring course of action or inaction” is “sustained” if the course of action or inaction is consistent or ongoing, and is “recurring” if the course of action or inaction occurs periodically or repeatedly and when the occurrences are related or the same in nature. A course of action or inaction does not include an isolated instance or case.
3 For greater certainty, a “course of action or inaction” is “in a manner affecting trade or investment between the Parties” if the course involves: (i) a person or industry that produces a good or supplies a
service traded between the Parties or has an investment in the territory of the Party that has failed to comply with this obligation; or (ii) a person or industry that produces a good or supplies a service that competes in the territory of a Party with a good or a service of the other Party.
4 For the purposes of dispute settlement, a panel shall presume that a failure is in a manner affecting trade or investment between the Parties unless the responding Party demonstrates otherwise.
Article 12.5: Procedural Matters
1. Each Party shall ensure that an interested person residing or established in its territory may request that its competent authorities investigate alleged violations of its environmental laws and that the competent authorities give those requests due consideration, in accordance with its law.
2. Each Party shall ensure that judicial, quasi-judicial or administrative proceedings for the enforcement of its environmental laws are available under its law and that those proceedings are fair, equitable, transparent and comply with due process of law. Any
hearings in these proceedings shall be open to the public, except when a Party’s administration of justice otherwise requires, and in accordance with its law.
3. Each Party shall ensure that a person with a recognized interest under its law in a particular matter has appropriate access to the proceedings referred to in paragraph 2.
4. Each Party shall provide appropriate sanctions or remedies for violations of its environmental laws. Those sanctions or remedies may include a right to bring an action directly against the violator to seek damages or injunctive relief, or a right to seek governmental action.
5. Each Party shall ensure that it takes account of factors that are relevant for the determination of the sanctions or remedies referred to in paragraph 4. Those factors may include the nature and gravity of the violation, damage to the environment and any economic benefit the violator derived from the violation.
Article 12.6: Environmental Impact Assessment