1. A procuring entity shall make available to suppliers tender documentation that includes all information necessary to permit suppliers to prepare and submit responsive tenders. Unless already provided for in the notice of intended procurement pursuant to Article 7.10, such documentation shall include a complete description of the information specified in Appendix 10 to Annex XX.
2. Where procuring entities do not offer free direct access to the entire tender documents and any supporting documents by electronic means, entities shall make promptly available the tender documentation at the request of any interested supplier of the Parties. The procuring entities shall also promptly reply to any reasonable request for relevant information by any interested or participating supplier, provided that such information does not give that supplier an advantage over other suppliers.
Article 7.15. Technical Specifications
1. A procuring entity shall 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 among the Parties.
2. In prescribing the technical specifications for the goods or services being procured, a procuring entity shall, where appropriate:
(a) set out the technical specification in terms of performance and functional requirements, rather than design or descriptive characteristics; and
(b) base the technical specification on international standards, where such exist or otherwise, on national technical regulations, recognised national standards or building codes.
3. Where design or descriptive characteristics are used in the technical specifications, a procuring entity should indicate, where appropriate, that it will consider tenders of equivalent goods or services that demonstrably fulfil the requirements of the procurement by including words such as "or equivalent" in the tender documentation.
4. A procuring entity shall not prescribe any 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, the entity includes words such as or equivalent in the tender documentation.
5. A procuring entity shall 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.
6. For greater certainty, a Party, including its procuring entities, may, in accordance with this Article, prepare, adopt, or apply technical specifications to promote the conservation of natural resources or protect the environment.
Article 7.16. Modifications of the Tender Documentation and Technical Specifications
Where, prior to the award of a contract, a procuring entity modifies the criteria or 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 in writing all such modifications or amended or reissued notice or tender documentation:
(a) to all suppliers that are participating at the time of the modification, amendment or reissuance, if known, and in all other cases, in the same manner as the original information was made available; and
(b) in adequate time to allow such suppliers to modify and resubmit amended tenders, as appropriate.
Article 7.17. Time-Periods
A procuring entity shall, consistent with its own reasonable needs, provide suppliers sufficient time to prepare and submit requests for participation and responsive tenders, taking into account in particular the nature and complexity of the procurement. Each Party shall apply time-periods according to the conditions specified in Appendix 8 to Annex XX. Such time-periods, including any extensions, shall be the same for all interested or participating suppliers.
Article 7.18. Limited Tendering
1. Provided that it does not use this provision for the purpose of avoiding competition among suppliers or in a manner that discriminates against suppliers of any other Party or protects domestic suppliers, a procuring entity may use limited tendering and may choose not to apply Articles 7.10, 7.11, 7.12, 7.13, 7.14, 7.15, 7.16, 7.17, 7.19, 7.20, 7.21 and 7.22 only under the following circumstances:
(a) where:
(i) no tenders were submitted, or no supplier requested participation;
(ii) no tenders that conform to the essential requirements of the tender documentation were submitted;
(iii) no suppliers satisfied the conditions for participation; or
(iv) the tenders submitted have been collusive;
Provided that the requirements of the tender documentation are not substantially modified;
(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 any of the following reasons:
(i) the requirement is for a work of art;
(ii) the protection of patents, copyrights or other exclusive rights; or
(iii) due to an absence of competition for technical reasons;
(c) for additional deliveries by the original supplier of goods and services that were not included in the initial procurement where a change of supplier for such additional goods and services:
(i) cannot be made for economic or technical reasons such as requirements of interchangeability or interoperability with existing equipment, software, services or installations procured under the initial procurement; and
(ii) would cause significant inconvenience or substantial duplication of costs to the procuring entity;
(d) in so far as strictly necessary where, for reasons of extreme urgency brought about by events unforeseeable by the procuring entity, the goods or services could not be obtained in time using an open or selective tendering procedure;
(e) for goods purchased on a commodity market;
(f) where a procuring entity procures a prototype or a first good or service that is developed at its request in the course of, and for, a particular contract for research, experiment, study or original development. Original development of a first good or service may include limited production or supply in order to incorporate the results of field testing and to demonstrate that the good or service is suitable for production or supply in quantity to acceptable quality standards, but does not include quantity production or supply to establish commercial viability or to recover research and development costs;
(g) where a contract is awarded to a winner of a design contest provided that:
(i) the contest has been organised in a manner that is consistent with the principles of this Chapter, in particular relating to the publication of a notice of intended procurement; and
(ii) the participants are judged by an independent jury with a view to a design contract being awarded to a winner.
2. A procuring entity shall maintain records or prepare a report in writing on each contract awarded under paragraph 1. The record or the report shall include the name of the procuring entity, the value and kind of goods or services procured, and a statement indicating the circumstances and conditions described in paragraph 1 that justified the use of limited tendering.
Article 7.19. Electronic Auctions
1. Where a procuring entity intends to conduct a covered procurement using an electronic auction, the entity shall provide each participant, before commencing the electronic auction, with:
(a) the automatic evaluation method, including the mathematical formula, that is based on the evaluation criteria set out in the tender documentation and that will be used in the automatic ranking or re-ranking during the auction;
(b) the results of any initial evaluation of the elements of its tender where the contract is to be awarded on the basis of the most advantageous tender; and
(c) any other relevant information relating to the conduct of the auction.
Article 7.20. Negotiations
1. A Party may provide for its procuring entities to conduct negotiations:
(a) where the entity has indicated such intent in the notice of intended procurement pursuant to Article 7.10; or
(b) where it appears from the evaluation that no tender is obviously the most advantageous in terms of the specific evaluation criteria set out in the notice or tender documentation.
2. A procuring entity shall:
(a) ensure that any elimination of suppliers participating in negotiations is carried out in accordance with the evaluation criteria set out in the notice or tender documentation; and
(b) where negotiations are concluded, provide a common deadline for the remaining participating suppliers to submit any new or revised tenders.
Article 7.21. Treatment of Tenders
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. Where a procuring entity provides suppliers with an opportunity to correct unintentional errors of form between the opening of tenders and the awarding of the contract, the entity shall provide the same opportunity to all participating suppliers.
Article 7.22. Awarding of Contracts
1. To be considered for award, a tender shall be submitted in writing and shall, 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.
2. Unless a procuring entity determines that it is not in the public interest to award a contract, it 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) where price is the sole criterion, the lowest price.
3. Where 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.
4. A procuring entity shall not use option clauses, cancel a procurement or modify awarded contracts in a manner that circumvents the obligations of this Chapter.
Article 7.23. Transparency of Procurement Information
1. A procuring entity shall promptly inform participating suppliers of its contract award decisions and, on request, shall do so in writing. Subject to Article 7.24, 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 suppliers tender.
2. No later than 72 days after the award of each contract, a procuring entity shall publish in a paper or electronic medium listed in Appendix 7 to Annex XX, a notice that includes at least the following information about the contract:
(a) A description of the goods or services procured;
(b) The name and address of the procuring entity;
(c) The name 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 where tendering was used pursuant to Article 7.18, an indication circumstances justifying the procedure used.
3. Where the entity publishes the notice only in an electronic medium, the information shall remain readily accessible for a reasonable period of time.
4. Each procuring entity shall, for a period of at least three years from the date it awards a contract, maintain the documentation and reports of tendering procedures and contract awards relating to covered procurement, including the reports provided for in Article 7.18, and the data that ensure the appropriate traceability of the conduct of covered procurement by electronic means.
Article 7.24. Disclosure of Information
1. On request of any 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.
2. In cases where disclosure 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.
3. Notwithstanding any other provision of this chapter, a Party, including its procuring entities, shall not provide to any supplier information that might prejudice fair competition between suppliers.
4. Nothing in this chapter shall be construed to require a Party, including its procuring entities, authorities, and review bodies, to disclose confidential information under this chapter where 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 7.25. Domestic Review Procedures for Supplier Challenges
1. Each Party shall provide a timely, effective, transparent and non-discriminatory administrative or judicial review procedure according to the due process principle through which a supplier may challenge where 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. Each Party may foresee in its domestic legislation that, 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 procuring entity and the supplier are encouraged to seek resolution of the complaint through consultations.
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. Where 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 either have its decisions 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") shall have the right to be heard prior to a decision of the review body being made on the challenge;
(c) the participants shall have the right to be represented and accompanied;
(d) the participants shall have access to all proceedings;
(e) the participants shall 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. Such 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 such measures should be applied. Just cause for not acting shall be provided in writing; and
(b) where a review body has determined that there has been a breach of this chapter 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 7.26. Modifications and Rectifications to Coverage
1. A Party may make rectifications of a purely formal nature to its coverage under this Chapter, or minor amendments to its Schedules in Annex XX, provided that it notifies the other Parties in writing and no other Party objects in writing within 45 days following the date of the circulation of the notification. A Party that makes such a rectification or minor amendment need not provide compensatory adjustments to the other Parties.
2. A Party may otherwise modify its coverage under this Chapter provided that:
(a) it notifies the other Parties in writing and offers at the same time acceptable compensatory adjustments to maintain a level of coverage comparable to that existing prior to the modification, except where provided for in paragraph 3; and
(b) no Party objects in writing within 45 days following the date of the circulation of the notification.
3. A Party need not provide compensatory adjustments when the Parties agree that the proposed modification covers a procuring entity over which a Party has effectively eliminated its control or influence. When 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 entitys continued coverage under this Chapter.
Article 7.27. Cooperation
1. The Parties recognise the importance of cooperation with a view to achieving a better understanding of their respective government procurement systems, as well as a better access to their respective markets, in particular for small business suppliers.
2. According to Chapter 10, the Parties shall endeavour to cooperate in matters such as:
(a) development and use of electronic communications in government procurement systems; and
(b) exchange of experiences and information, such as regulatory frameworks, best practices and statistics.
A rticle 7.28 Further Negotiations
In case a Party offers a third party, in the future, additional advantages with respect to its respective government procurement market access coverage agreed under this Chapter, it shall agree, upon request of any other Party, to enter into negotiations with a view to extending coverage under this Chapter on a reciprocal basis.
Chapter 8. Competition
Article 8.1. Anti-competitive Practices
1. The following practices of undertakings are incompatible with the proper functioning of this Agreement in so far as they may affect trade between the Parties:
(a) agreements between undertakings, decisions by associations of undertakings and concerted practices between enterprises which have as their object or effect the prevention, restriction or distortion of competition;
(b) abuse by one or more undertakings of a dominant position 11 in the territory of a Party as a whole or in a substantial part thereof.
2. Subject to their domestic laws, the provisions of paragraph 1 shall also apply to the activities of public undertakings, and undertakings to which the Parties grant special or exclusive rights, in so far as the application of these provisions does not obstruct the performance, in law or in fact, of the particular public tasks assigned to them.
3. Rights and obligations under this Chapter shall only apply between the Parties.
4. In order to fulfil the obligations of this Chapter, if at the moment of entry into force of this Agreement a Party has not yet adopted competition legislation or designated a competent authority, it shall do so within a period of three years.
Article 8.2. Cooperation
1. Subject to their domestic laws, the Parties involved shall cooperate in their dealings with anticompetitive practices as outlined in Article 8.1, with the aim of putting an end to such practices.
2. Cooperation may include the exchange of pertinent information that is available to the Parties. No Party shall be required to disclose information that is confidential according to its laws.
The term "dominant position" may be referred to as an undertaking able to operate independently from its competitors or customers, or alternatively as a substantial market power or as a notable market participation, as specified in the Central American States' respective competition laws.
Article 8.3. Consultations
To foster understanding between the Parties or to address any matter arising under this Chapter, a Party may request consultations within the Joint Committee. This request shall indicate the reasons for the consultations. Consultations shall be held promptly with a view to reaching a conclusion consistent with this Chapter. The Parties concerned shall give to the Joint Committee all the support and information needed. No Party shall be required to disclose information that is confidential according to its laws.
Article 8.4. Dispute Settlement
No Party may have recourse to dispute settlement under Chapter 12 for any matter arising under this Chapter.
Chapter 9. Trade and Sustainable Development
A rticle 9.1
Context and Objectives
1. The Parties recall the Declaration of the United Nations Conference on the Human Environment of 1972, the Rio Declaration on Environment and Development of 1992, Agenda 21 on Environment and Development of 1992, the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up of 1998, the Johannesburg Plan of Implementation on Sustainable Development of 2002 and the Ministerial Declaration of the UN Economic and Social Council on Full Employment and Decent Work of 2006 and the ILO Declaration on Social Justice for a Fair Globalization of 2008.
2. The Parties recognise that economic development, social development and environmental protection are interdependent and mutually supportive components of sustainable development. They underline the benefit of cooperation on trade-related labour and environmental issues as part of a global approach to trade and sustainable development.
3. The Parties agree that this Chapter embodies a cooperative approach based on common values and interests, taking into account the differences in their levels of development as appropriate and the respect of their current and future needs and aspirations.
4. The Parties reaffirm their commitment to promote the development of international trade in such a way as to contribute to the objective of sustainable development and to ensure that this objective is integrated and reflected in the Parties trade relationship.
A rticle 9.2
Scope
Except as otherwise provided for in this Chapter, this Chapter applies to measures adopted or maintained by the Parties affecting trade-related and investment-related aspects of labour and environmental issues.
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A rticle 9.3
Right to Regulate and Levels of Protection
1. The Parties recognise the right of each Party to establish its own levels of environmental and labour protection, and to adopt or modify accordingly its relevant laws and policies in a manner consistent with their respective Constitutions, and the provisions of this Agreement, in order to set their own sustainable development priorities.
2. Each Party shall seek to ensure that its laws, policies and practices provide for and encourage high levels of environmental and labour protection, appropriate to its social, environmental and economic conditions and consistent with the internationally recognised standards, principles and agreements referred to in Articles 9.5 and 9.6, and shall strive to improve the levels of protection provided for in those laws and policies.
3. The Parties recognise the importance, when preparing and implementing measures related to the environment and labour conditions that affect trade and investment between them, of taking account of scientific and technical information, and relevant international standards, guidelines and recommendations.
A rticle 9.4
Upholding Levels of Protection
1. A Party shall not fail to effectively enforce its environmental and labour laws, regulations or standards in a manner affecting trade or investment between the Parties.
2. Subject to Article 9.3:
(a) the Parties recognise that it is inappropriate to weaken or reduce the levels of environmental or labour protection provided by its laws, regulations or standards with the sole intention to encourage investment from another Party or to seek or to enhance a competitive trade advantage of producers or service providers operating in its territory; or
(b) a Party shall not waive or otherwise derogate from, or offer to waive or otherwise derogate from such environmental or labour laws, regulations or standards in order to encourage investment from another Party or to seek or to enhance a competitive trade advantage of producers or service providers operating in its territory.
LVI
A rticle 9.5