The listed above refers to all entities, institutions or enterprises of the Government of each Party, except for those provisions of the domestic law of each of the Parties may not be included in the coverage of this chapter in accordance with Annex I.
3. Furthermore, this chapter applies to measures that a party adopts or maintains with respect to the procurement of goods originating from all the other party, except those specified in annex II, of all services, without prejudice to the rights and obligations set out in chapter X (services).
4. Paragraphs 1 and 2 are set out in annex III.
5. Procurement includes procurement by methods such as purchase, lease or rental, with or without an option to buy. Purchases does not include:
Non-contractual agreements or any form of government assistance, including cooperation agreements, transfers, transfer of capital, loans, guarantees, fiscal incentives and governmental supplied of goods and services to persons or to central government or municipalities;
The acquisition of Fiscal Agency services or deposits, liquidation and Management Services for regulated financial institutions and sale and distribution services for government debt.
6. The Parties shall ensure that measures to implement its entities are in accordance with the provisions of this chapter.
Article 12.03. National Treatment and Non-discrimination
1. As regards to measures regarding procurement covered by this chapter, each Party shall accord immediately and unconditionally to the goods and services suppliers of the other party offering goods or services originating in that Party, treatment no less favourable than that accorded to the goods, services and domestic suppliers.
2. As regards to measures regarding procurement covered by this chapter, no party may:
a) Grant, to a supplier established in its territory, a treatment less favourable than that accorded to another supplier established in the Territory, on the basis of the degree of foreign ownership or affiliation; or
b) Discriminate against a locally-established supplier in its territory on the basis that the goods or services offered by that supplier for a particular procurement are goods or services of the other party.
Goods originating in the parties, falling within the scope of this chapter shall be subject to the requirements of paragraph 1 of Article 3.04.
For purposes of comparison of prices not be added to the value of the originating goods of the other party, customs duties and other charges on the importation, where the buyer is exempt from payment.
Parties may establish requirements of representation and local presence, provided that such requirements do not have the effect of discriminating in favour of domestic suppliers.
Article 12.04. Rules of Origin
For purposes of government procurement covered by this chapter, no party shall apply rules of origin to goods imported from another Party different or incompatible with the rules of origin set out in chapter IV (rules of origin).
Article 12.05. Denial of Benefits
A Party may deny the benefits of this chapter to a service supplier of another party, subject to prior notification and consultation, where the party establishes that the service is being provided by an enterprise that is owned or controlled by persons of a non-Party and the enterprise has no substantial business activities in the territory of either party.
Article 12.06. Prohibition of Countervailing Special Conditions
Each Party shall ensure that its entities do not take into account, upon request, nor impose countervailing special conditions in the qualification and selection of suppliers of goods or services. in the evaluation of tenders or in the award of contracts. For the purposes of this article, means countervailing special conditions which an entity may impose or take into account before or during the procurement procedures to encourage local development or improve balance of payments accounts by means of local content requirements, licensing of the use of technology, investments, countertrade or similar requirements.
Article 12.07. Technical Specifications
1. Each Party shall ensure that its entities do not develop, adopt or apply technical specifications which have the purpose or effect of creating unnecessary obstacles to trade.
2. Each Party shall ensure that any technical specification requiring their entities:
a) Defined in terms of performance criteria rather than design or descriptive characteristics;
b) Where appropriate, based on international standards, national technical regulations, or recognised national building codes and standards;
c) Consistent with the provisions in chapter XIII (Technical Barriers to Trade).
3. Each Party shall ensure that technical specifications stipulating its entities do not require or refer to a particular trademark or trade name, patents, designs, specific origin or 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 "or equivalent" are included in the basis .
4. Each Party shall ensure that its entities do not seek or accept, in a manner that would have the effect of precluding that advice, competition 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 that procurement.
Article 12.08. Procurement Procedures
1. Each Party shall apply its national legislation on procurement procedures, including the formalities relating to the qualification of suppliers, convening, foundations, deadlines, presentation, receipt and opening of tenders and awarding of contracts and the amounts set out in each country to determine how to purchase, provided that the procedure chosen ensures a maximum possible competition.
2. Notwithstanding the above, each Party shall ensure that the procurement procedures of its entities are applied respecting the principles of transparency and non-discrimination, as set out in this chapter.
Article 12.09. Principle of Transparency
1. In order to comply with the principle of transparency, the Parties shall ensure that their laws and regulations on public procurement procedures provided:
The requirements of the procurement;
Public procurement procedures and the cases where these are mandatory;
Public procurement procedures that require basis;
The obligation in databases containing the general conditions and technical specifications required and the requirements for labelling and comparing tenders;
The publication in the Official Journal or in national newspapers of notice of procurement, which shall be invited to participate in a procurement;
The possibility, for any possible participant, to challenge the basis when it considers that any breach of the principles established in the domestic legislation of the Party in which it is engaged, or of this chapter;
The reasons for the award;
Accountability and compliance assurance of participation, where appropriate;
The opportunity to correct deficiencies and obvious errors or omissions of the tender, provided that such defects are not related to the content of the tender as the characteristics of the goods, the price, delivery times or guarantees or any other substantial aspect established by the domestic legislation of each Party or that is classified as such in the tender or any other aspect whose correction violates the principle of equality between bidders;
The possibility of using the award, on the terms established by
The national legislation of each of the Parties; and
The others than by means of a protocol to this treaty may be established by the parties.
2. Each Party shall ensure that its entities:
Provide to all suppliers equal access to information regarding a purchase; and
Do not provide any information relating to supplier to a specific procurement in a manner that would have the effect of precluding competition or grant an advantage to a supplier with an interest in the procurement.
Article 12.10. Principle of Publicity
In order to comply with the principle of publicity, the Parties shall, in addition to the above, in the previous article:
Publish all laws, regulations and, where appropriate, jurisprudence, administrative rulings of general application, model contract clauses and any other measures relating to public procurement, and notify its national section of the Secretariat and the other party;
Notify its national section of the Secretariat and the other party by upon the Entry into Force of this Treaty, the list of entities of central government enterprises, decentralized institutions, autonomous or semi-autonomous and municipalities.
Article 12.11. Avoidance Proceedings
Each Party shall apply in its national legislation for procurement challenge procedures covered by this chapter in accordance with the following conditions:
Must be non-discriminatory, transparent and effective enabling suppliers participating challenge alleged breaches of this chapter and their respective domestic legislation, occurring in the context of procurements in which they have, or have had an interest;
Within the system of each Party shall provide resources made to:
The contracting entity itself or to the extent possible before a court or administrative independent and impartial body that has no interest in the outcome of the contract, and whose members are protected against external influences throughout the period of its mandate; and
The competent courts;
Within the system of dispute after exhausting administrative procedures it may refer the matter to the courts; and
At any moment during the appeal, the procedures shall ensure the right of hearing to participating suppliers; participants can be represented and accompanied; participants suppliers that have access to all proceedings; proceedings can be public; that the opinions or decisions made in writing with a statement of reasons that may arise; witnesses and documentary evidence.
Article 12.12. Settlement of Disputes
Any dispute which may arise between the parties with regard to the provisions of this chapter shall be settled in accordance with chapter XVI (dispute settlement).
Article 12.13. Committee on Government Procurement
There shall be established a committee on Government Procurement, upon the Entry into Force of this Treaty, comprising representatives of each party. The Committee shall meet whenever necessary but at least once a year to provide an opportunity for the parties to consult on issues related to the operation of this chapter or the achievement of its objectives; to seek cooperation mechanisms allowing a better understanding of their government procurement systems, greater access to them; promote opportunities for their micro, small and medium enterprises; and to perform the functions under this Chapter and other functions as assigned by the parties.
Article 12.14. Exceptions
Nothing in this chapter shall be construed as preventing a party from taking any action or not disclosing any information which it considers necessary to protect its essential security interests relating to the procurement of arms, munitions or war materials or any other procurement indispensable for national security or for national defence purposes.
Provided that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between the parties where the same conditions prevail or a disguised restriction on trade between the parties nothing in this chapter shall be construed to prevent a Party from adopting or maintaining measures:
Necessary to protect public morals, public order or safety; necessary to protect human life and health, animal or plant; necessary to protect intellectual property; or relating to goods or services provided by charitable institutions, disabled or of prison labour.
Article 12.15. Provision of Information
Each Party shall:
Explain to the other Party upon its request for public procurement procedures;
It shall ensure that its entities, on request of a supplier promptly explain their practices and procedures of public procurement; and
He shall designate by the Entry into Force of this Treaty one or more centres for information:
i) To facilitate communication between the parties; and
Answer, upon request, all reasonable enquiries from the other party to provide relevant information on matters covered by this chapter.
A Party may request additional information on the contract award as may be necessary to determine whether a procurement was conducted in accordance with the provisions of this chapter in respect of tenders that have not been selected. For this purpose, the buyer entity will provide information on the characteristics and relative advantages of the winning tender and the contract price. Where release of this information would prejudice future competition in procurement, the requesting party shall not disclose information except after consultation with the party providing information and after obtaining the consent.
Each Party shall provide to the other Party upon request information available to that Party covered regarding procurement and on individual contracts awarded by its entities.
No party may disclose confidential information the disclosure of which would prejudice the legitimate commercial interests of a particular person or might prejudice fair competition between suppliers without formal authorization of the person that the information provided to the party.
Nothing in this chapter shall be construed as to oblige a party to provide confidential information whose disclosure would impede law enforcement or otherwise be contrary to the public interest.
With a view to ensuring effective monitoring of procurement covered by this chapter Each Party shall collect statistics and the other party shall provide an annual report containing, unless the parties agree otherwise, the statistics on the estimated value of contracts awarded by contracting procedures, by entities, by categories of goods and services and by country of origin of the goods and services. The Committee on Government Procurement, upon the entry into force of this Treaty, agree on the format and timing under which the parties shall comply with this commitment.
Article 12.16. Privatization of Entities
Nothing in this chapter shall be construed as preventing a party to privatise dispose or an entity covered by the same.
If a public entity falling within the scope of this chapter is privatized or State loses its control or their participation, the Party may withdraw the Entity coverage of this chapter, upon notification to its national section of the Secretariat and the other party.
Article 12.17. Reorganization
A Party may rearrange its public sector entities, or establish programmes for decentralization of the procurement of such entities or the corresponding government functions cease to be performed by the public sector, without fails to comply with the provisions of this chapter, provided that reorganizations or not intended to evade compliance with obligations.
If a public entity falling within the scope of this chapter cease to exist for the purpose of reorganization, the Party may withdraw the Entity coverage of this chapter, upon notification to the other party and to its national section of the Secretariat.
Article 12.18. Contract
The Parties shall ensure that their entities covered by the scope of application of this chapter, comply with the commitments on contractual clauses as the term of payment.
Article 12.19. Future Negotiations
With a view to determining the feasibility and desirability of achieving the harmonization of procedures for procurements between the parties and to include within the coverage of this chapter construction works, and the award of public works in general; the Committee on Government Procurement shall prepare a report which shall submit to the Council. The Council may make appropriate recommendations to the parties.
Chapter XIII. Technical Barriers to Trade
Article 13.01. Definitions
For purposes of this chapter, the Parties shall use the terms set out in the Guide 2 of the current ISO / IEC, "general terms and definitions concerning their standardization and related activities." However, it shall be understood:
Hazardous wastes: any material produced in the processes of production, processing, consumption, production, use, control or treatment, whose quality does not use again in the process that led to their characteristics and corrosive, reactive, toxic, poisonous, radioactive, explosive, flammable or infectious biological, irritant, represent a danger to health or the environment;
Risk assessment: the assessment of potential harm to the health or safety of humans, animals or plants, or the environment could lead to a good or service traded between the parties;
Standardization measures: standards, technical regulations and conformity assessment procedures;
Standard means a document approved by a recognised body that provides for common and repeated use, rules, guidelines or characteristics for goods or related processes and production methods, or services or related to methods of operation, and with which compliance is not mandatory. It may also include requirements of terminology, symbols, packaging, marking or labelling applicable to a good or service, process or production method or operation, or related exclusively to them;
International Standard: A standard or other guides or recommendations adopted by an international body standardisation and made available to the public;
Legitimate objectives: inter alia, includes objectives such as: security or protection of human life or health, plant or animal, or the environment, the prevention of misleading or deceptive practices consumers, including matters relating to the identification of goods or services, considering among other factors, where appropriate, climatic, geographicaL, infrastructure, technological factors or scientific justification;
Conformity assessment procedure: Any procedure used, directly or indirectly, to determine whether the relevant requirements established by technical regulations or standards are fulfilled, including sampling, testing, inspection, evaluation, verification, assurance of conformity, acreditamiento, registration, certification and approval, used for these purposes;
Administrative refusal: actions taken by a body of public administration of the importing Party, in the exercise of its powers, to prevent the entry into its territory a shipment of or the provision of a service, for technical reasons;
Technical regulation means a document which lays down the characteristics of goods or their related processes and production methods, services or characteristics or their related methods of operation, including any applicable administrative provisions; and with which compliance is mandatory. It may also include requirements of terminology, symbols or packaging, labelling applicable to goods, services, processes or methods of production or related operations, or deal exclusively to them;
Service means any service within the scope of this Treaty, which is subject to measures of standardization and metrology;
Dangerous Substances: those are prejudicial to the health or safety of human, animal, plant or the environment and which are identified as such by national and international agencies.
Article 13.02. Scope
1. This chapter applies to standardization and metrology measures of the Parties, as well as the related actions that may directly or indirectly affect the trade in goods or services between them.
2. The Parties confirm their rights and obligations existing under the TBT Agreement under the WTO Agreement and other international agreements to which the parties are party, including treaties on health, environmental and conservation and protection for consumers.
3. This chapter does not apply to sanitary and phytosanitary measures.
Article 13.03. The Use of International Standards
Each Party shall use as a basis for the development and implementation of its standardization measures, existing international standards or imminent, except when such international standards do not constitute an effective or appropriate means for achieving their legitimate objectives because of fundamental climatic factors such as geographical, technological infrastructure, or for reasons scientifically verified.
Where an importing party applies for approval of conformity assessment procedures, to prohibit or restrict the access of goods, that Party shall use relevant international standards as a basis for access until a final determination.
Article 13.04. Risk Assessment
1. Each Party may carry out risk assessments in its territory provided that it does not have the purpose or effect of creating unnecessary obstacles to trade between them. in so doing, shall take into account the risk assessment methodologies developed by international organizations.
2. In conducting a risk assessment, who carry out the Party shall take into consideration all relevant scientific evidence, technical information available, the intended end-use and related processing technology.
3. Once the level of protection that it considers appropriate to undertake a risk assessment, each Party shall avoid arbitrary or unjustifiable distinctions between similar goods or services, if such distinctions:
a) Result in arbitrary or unjustifiable discrimination against goods or service suppliers of the other party;
b) Constitute a disguised restriction on trade between the parties; or
c) Discriminate between similar goods or services for the same use under the same conditions that pose the same level of risk and provide similar benefits.
Article 13.05. Compatibility and Equivalence
1. Without prejudice to the rights conferred by this Chapter and taking into account international standardization activities, the Parties shall make compatible their respective standardization measures without reducing the level of safety or of protection of human life or health, animal or plant, the environment or to consumers.
Each Party shall accept a technical regulation of the other party as equivalent to its own where, in cooperation with the other party, the exporting Party is satisfied that the technical regulations of the importing Party, are appropriately with the legitimate objectives.
At the request of the exporting party and the importing Party shall submit in writing its reasons for not accepting a technical regulation under paragraph 2.
The Parties recognise the need to update and revise and harmonisation of standards and technical regulations and develop mechanisms allowing the parties to conduct conformity assessment, design, conformity assessment systems certify and accredit to create conformity certification marks.
Article 13.06. Conformity Assessment
If it is mutually beneficial to each party, on a reciprocal basis, shall be granted a license or recognition of assessment bodies in accordance to the territory of the other Party on terms no less favourable than the given to those bodies in its territory.
For conformity assessment procedures, the parties of this Treaty, may use the technical capacity and structure of accredited bodies established in the territory of the Parties.
Where possible, the Parties shall ensure that the procedure is conducted in the production of the good and, where appropriate, a mark of conformity.
Each Party shall give favourable consideration to a request by the other party to negotiate agreements for the mutual recognition of the results of conformity assessment procedures of that Party.
Article 13.07. Metrology Standards
Each Party shall, as far as possible, the traceability of their patterns metrological as recommended by the International Bureau of Weights and Measures (BIPM) and the International Organization of Legal Metrology (OIML), in accordance with the principles set out in this chapter.
Article 13.08. Packaging and Labelling and Packaging
The Parties shall develop harmonised rules on labelling, packaging and packing and formulate through a sub-committee established in accordance with the annex to article 13.11.
As long as the harmonised standards are developed, each Party shall apply within its territory their relevant packing, packaging and labelling requirements .
In the case of food and food additives, to ensure that standards developed not contradict or in spirit or in practice, the principle of harmonization preferably used documents and standards developed by the Codex Alimentarius.
Article 13.09. Notification
Each Party shall notify the other party of measures regarding standardization and metrology that seeks to establish before they come into force.
Each Party shall notify the other party when a measure on standardisation cease to be in force.
The proposing the adoption or modification of any measure of standardization and metrology management, each Party shall:
a) Expeditiously publish a notice and notify the other party in writing using the same format of notification of the World Trade Organization
Trade, its intention to adopt or modify so as to enable interested persons to become acquainted with the proposed, at least sixty (60) days prior to the adoption or modification;
b) A copy of the proposed measure to any interested party or that person so requests and, where possible, shall identify the provisions which differ substantially from relevant international standards;
c) Without discrimination, it will enable the Party and other interested persons to make comments in writing and shall, upon request, discuss and take into account, as well as the results of the discussions; and
d) Once the measure, the Party shall deliver a copy to the other party through the information centres.
Where a Party considers it necessary to address an urgent problem relating to a legitimate objective, it may omit within sixty (60) days required in paragraph 3.
Each Party shall annually in writing to the other party of its standardization plans and programmes.
When a Party administratively refuses a shipment or the provision of services by reason of non-compliance with a measure of standardization and metrology, it shall without delay and in writing to the person of lading or the service provider, the technical justification for rejection.
Once generated the information referred to in paragraph 6, the Party shall immediately provide the information centre of each party in this Treaty.
Article 13.10. Information Centres
1. Each Party shall ensure that there is at least an Information Centre in its territory able to answer questions and all reasonable requests of the Party and other interested persons and provide the relevant documentation update under any measure of standardization, metrology standards or conformity assessment procedures adopted or proposed in its territory by government agencies or non-governmental.