(b) no provision of Chapter Fifteen (Electronic Commerce) shall be construed as imposing obligations on a Party with respect to the procurement of digital products.
5. The provisions of this Chapter do not affect the rights and obligations provided for in Chapters Two (National Treatment and Market Access for Goods), Eleven (Investment), Twelve (Cross-Border Trade in Services), and Thirteen (Financial Services).
Article 17.3. INCORPORATION OF GPA PROVISIONS
1. For all covered procurement, the Parties shall apply Appendices I through IV of the GPA, and the following articles of the GPA, mutatis mutandis:
Article I:3 Application to Non-listed Entities
Article II Valuation of Contracts
Article III National Treatment and Non-discrimination
Article IV:1 Rules of Origin
Article VI Technical Specifications
Article VII Tendering Procedures
Article VIII Qualification of Suppliers
Article IX Invitation to Participate Regarding Intended Procurement
Article X Selection Procedures
Article XI:4 Time-Limits for Delivery
Article XII Tender Documentation
Article XIII Submission, Receipt and Opening of Tenders and Awarding of Contracts
Article XIV Negotiation
Article XV Limited Tendering
Article XVI:1 Offsets
Article XVIII Information and Review as Regards Obligations of Entities
Article XIX:1 through 4 Information and Review as Regards Obligations of Parties
Article XX Challenge Procedures
Article XXIII Exceptions to the Agreement
To that end, these GPA articles and appendices are incorporated into and made a part of this Chapter, mutatis mutandis.
2. For purposes of the incorporation of the GPA under paragraph 1, the term:
(a) “Agreement” in the GPA means “Chapter,” except that “countries not Parties to this Agreement” means “non-Parties” and “Party to the Agreement” in GPA Article III:2(b) means “Party;”
(b) “Appendix I” in the GPA means “Annex 17-A;”
(c) “Annex 1” in the GPA means “Section A of Annex 17-A;”
(d) “Annex 4” in the GPA means “Section C of Annex 17-A;”
(e) “Annex 5” in the GPA means “Section D of Annex 17-A;”
(f) “any other Party” in GPA Article III:1(b) means “a non-Party;”
(g) “other Parties” in the GPA means “the other Party;”
(h) “products” in the GPA means “goods;” and
(i) “among suppliers of other Parties or” in GPA Article VIII shall not be incorporated.
3. The Parties recognize that on December 8, 2006, the WTO Committee on Government Procurement provisionally approved the text of the revised GPA. Further to Article 24.3 (Amendment of the WTO Agreement), at such time as the revised GPA enters into force for both Parties, the Parties shall promptly incorporate by reference the appropriate provisions of the revised GPA in place of the provisions in paragraph 1.
4. If the GPA is further amended or is superseded by another agreement, the Parties shall, consistent with Article 24.2 (Amendments), amend this Chapter, as appropriate, after consultations.
Article 17.4. GENERAL PRINCIPLES
Use of Electronic Means
1. When conducting covered procurement by electronic means, a procuring entity shall:
(a) ensure that the procurement is conducted using information technology systems and software, including those related to authentication and encryption of information, that are generally available and interoperable with other generally available information technology systems and software; and
(b) maintain mechanisms that ensure the integrity of requests for participation and tenders, including establishment of the time of receipt and the prevention of inappropriate access.
Valuation
2. For greater certainty with regard to Article Il of the GPA, in estimating the value of a procurement for the purpose of ascertaining whether it is a covered procurement, a procuring entity shall include the estimated maximum total value of the procurement over its entire duration, whether awarded to one or more suppliers, taking into account all forms of remuneration, including premiums, fees, commissions, interest, and other revenue streams that may be provided for in the procurement.
Article 17.5. CONDITIONS FOR PARTICIPATION
1. A procuring entity shall limit any conditions for participation in a procurement to those that are essential to ensure that a supplier has the legal and financial capacities and the commercial and technical abilities to undertake the relevant procurement.
2. In assessing whether a supplier satisfies the conditions for participation, a procuring entity:
(a) shall evaluate the supplier's financial capacity and commercial and technical abilities on the basis of that supplier's business activities outside the territory of the Party of the procuring entity, as well as its business activities, if any, inside the territory of the Party of the procuring entity;
(b) shall not impose the condition that, in order for a supplier to participate in a procurement or be awarded a contract, the supplier has previously been awarded one or more contracts by a procuring entity of that Party or that the supplier has prior work experience in the territory of that Party; and
(c) shall base its determination of whether a supplier has satisfied the conditions for participation solely on the conditions that the procuring entity has specified in advance in notices or tender documentation.
3. A procuring entity may exclude a supplier on grounds such as: (a) bankruptcy; (b) false declarations;
(c) significant or persistent deficiencies in performance of any substantive requirement or obligation under a prior contract or contracts;
(d) final judgments in respect of serious crimes or other serious offenses; and
(e) failure to pay taxes.
Article 17.6. PUBLICATION OF NOTICES
Notice of Intended Procurement
1. For each covered procurement, a procuring entity shall publish a notice of intended procurement in accordance with Article IX of the GPA, in the appropriate electronic medium, except in the circumstances described in Article XV of the GPA. Notice of Planned Procurement
2. Each Party shall encourage its procuring entities to publish, as early as possible in each fiscal year, a notice regarding their future procurement plans. The notice should include the subject matter of the procurement and the planned date of the publication of the notice of intended procurement and, to the extent possible, be published in an electronic medium listed in each Party's Appendix II to the GPA.
Article 17.7. TECHNICAL SPECIFICATIONS
For greater certainty, a Party, including its procuring entities, may, in accordance with Article VI of the GPA, prepare, adopt, or apply technical specifications:
(a) to promote the conservation of natural resources or protect the environment; or
(b) to require a supplier to comply with generally applicable laws regarding
(i) fundamental principles and rights at work; and
(ii) acceptable conditions of work with respect to minimum wages, hours of work, and occupational safety and health,
in the territory in which the good is produced or the service is performed.
Article 17.8. TIME-PERIODS
General
1. A procuring entity shall, consistent with its own reasonable needs, provide sufficient time for suppliers to prepare and submit requests for participation and responsive tenders, taking into account such factors as:
(a) the nature and complexity of the procurement;
(b) the extent of subcontracting anticipated; and
(c) the time for transmitting tenders from foreign as well as domestic points where electronic means are not used.
Such time-periods, including any extension of the time-periods, shall be common for all interested or participating suppliers.
Deadlines
2. A procuring entity that uses selective tendering shall establish that the final date for the submission of requests for participation shall not, in principle, be less than 25 days from the date of publication of the notice of intended procurement. Where a state of urgency duly substantiated by the procuring entity renders this time-period impracticable, the time-period may be reduced to not less than 10 days.
3. Except as provided for in paragraphs 4 and 5, a procuring entity shall establish that the final date for the submission of tenders shall not be less than 40 days from the date on which:
(a) in the case of open tendering, the notice of intended procurement is published; or
(b) in the case of selective tendering, the entity notifies suppliers that they will be invited to submit tenders, whether or not it uses a multi-use list.
4. A procuring entity may reduce the time-period for tendering set out in paragraph 3 to not less than 10 days where:
(a) the procuring entity published a notice of planned procurement under Article IX:7 of the GPA at least 40 days and not more than 12 months in advance of the publication of the notice of intended procurement, and the notice of planned procurement contains:
(i) a description of the procurement;
(ii) the approximate final dates for the submission of tenders or requests for participation;
(iii) a statement that interested suppliers should express their interest in the procurement to the procuring entity;
(iv) the address from which documents relating to the procurement may be obtained; and
(vy) as much of the information that is required under Article IX:6 of the GPA for the notice of intended procurement, as is available;
(b) the procuring entity, for procurements of a recurring nature, indicates in an initial notice of intended procurement that subsequent notices will provide time-periods for tendering based on this paragraph; or
(c) a state of urgency duly substantiated by the procuring entity renders such time-period impracticable.
5. A procuring entity may reduce the time-period for tendering set out in paragraph 3 by five days for each one of the following circumstances:
(a) the notice of intended procurement is published by electronic means;
(b) all the tender documentation is made available by electronic means from the date of the publication of the notice of intended procurement; and
(c) the tenders can be received by electronic means by the procuring entity.
6. The use of paragraph 5, in conjunction with paragraph 4, shall in no case result in the reduction of the time-period for tendering set out in paragraph 3 to less than ten days from the date on which the notice of intended procurement is published.
7. Notwithstanding any other time-period in this Article, where a procuring entity purchases commercial goods or services, it may reduce the time-period for tendering set out in paragraph 3 to not less than 13 days, provided that it publishes by electronic means, at the same time, both the notice of intended procurement and the tender documentation. Where the entity also accepts tenders for commercial goods and services by electronic means, it may reduce the time period set out in paragraph 3 to not less than ten days.
Article 17.9. MODIFICATIONS AND RECTIFICATIONS TO COVERAGE
1. A Party shall notify the other Party of any proposed rectification of Annex 17-A, withdrawal of an entity from Annex 17-A, or other modification of Annex 17-A (referred to generally in this Article as "modification"). The Party proposing the modification (modifying Party) shall include in the notification:
(a) for any proposed withdrawal of an entity from Annex 17-A in the exercise of its rights on the grounds that government control or influence over the entity's covered procurement has been effectively eliminated, evidence that such government control or influence has been effectively eliminated; or
(b) for any other proposed modification, information as to the likely consequences of the change for the mutually agreed coverage provided under this Chapter.
2. Where the other Party objects to the proposed modification, it shall notify the modifying Party of its objection within 30 days of the notification of the proposed modification and include the reasons for its objection.
3. The Parties shall seek to resolve any objection through consultations. In such consultations, the Parties shall consider the proposed modification and, in the case ofa notification under paragraph 1(b), any claim for compensatory adjustments, with a view to maintaining a balance of rights and obligations and a comparable level of mutually agreed coverage provided in this Chapter prior to such notification.
4. Ifa Party proposes a modification pursuant to paragraph 1(b), the modifying Party shall offer to the other Party appropriate compensatory adjustments, where such adjustments are necessary to maintain a level of coverage comparable to that which was existing prior to the modification. Such modification shall become effective if the other Party does not notify the modifying Party of any objection to the proposed modification within 30 days of the notification. A Party need not provide compensatory adjustments where the Parties agree that the proposed modification covers a procuring entity over which a Party has effectively eliminated its control or influence over the entity's covered procurement.
5. The Joint Committee shall adopt any proposed modification only where the other Party:
(a) does not object in writing to the proposed modification within 30 days of the notification provided under paragraph 1; or
(b) submits to the modifying Party a written notice withdrawing the objection.
Article 17.10. GOVERNMENT PROCUREMENT WORKING GROUP
1. The Parties shall establish a Working Group on Government Procurement comprising representatives of each Party.
2. The Working Group shall meet, as mutually agreed or upon request of a Party, to:
(a) consider issues regarding government procurement that a Party refers to it, including issues related to information technology; and
(b) exchange information relating to the government procurement opportunities in each Party.
Article 17.11. DEFINITIONS
For purposes of this Chapter:
APEC means Asia Pacific Economic Cooperation;
build-operate-transfer contract and public works concession contract mean any contractual arrangement the primary purpose of which is to provide for the construction or rehabilitation of physical infrastructure, plant, buildings, facilities, or other government-owned works and under which, as consideration for a supplier's execution of a contractual arrangement, a procuring entity grants to the supplier, for a specified period of time, temporary ownership or a right to control and operate, and demand payment for the use of, such works for the duration of the contract;
commercial goods or services means goods or services of a type generally sold or offered for sale in the commercial marketplace to, and customarily purchased by, non-governmental buyers for non-governmental purposes;
GPA means WTO Agreement on Government Procurement, done at Marrakesh, April 15, 1994; and procuring entity means an entity covered under Section A of Annex 17-A.
Chapter Eighteen. INTELLECTUAL PROPERTY RIGHTS
Article 18.1. GENERAL PROVISIONS
1. Each Party shall, at a minimum, give effect to this Chapter.
International Agreements
2. Further to Article 1.2 (Relation to Other Agreements), the Parties affirm their existing rights and obligations with respect to each other under the TRIPS Agreement.
3. Each Party shall ratify or accede to the following agreements by the date this Agreement enters into force:
(a) the Patent Cooperation Treaty (1970), as amended in 1979;
(b) the Paris Convention for the Protection of Industrial Property (1967) (the Paris Convention);
(c) the Berne Convention for the Protection of Literary and Artistic Works (1971) (the Berne Convention);
(d) the Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite (1974);
(e) the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (1989);
(f) the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure (1977), as amended in 1980;
(g) the International Convention for the Protection of New Varieties of Plants (1991);
(h) the Trademark Law Treaty (1994); (1)
(i) the World Intellectual Property Organization (WIPO) Copyright Treaty (1996); and
(j) the WIPO Performances and Phonograms Treaty (1996).
4. Each Party shall make all reasonable efforts to ratify or accede to the following agreements:
(a) the Patent Law Treaty (2000);
(b) the Hague Agreement Concerning the International Registration of Industrial Designs (1999); and
(c) the Singapore Treaty on the Law of Trademarks (2006). More Extensive Protection and Enforcement
5. A Party may provide more extensive protection for, and enforcement of, intellectual property rights under its law than this Chapter requires, provided that the more extensive protection does not contravene this Chapter.
National Treatment
6. In respect of all categories of intellectual property covered in this Chapter, each Party shall accord to nationals (2) of the other Party treatment no less favorable than it accords to its own nationals with regard to the protection (3) and enjoyment of such intellectual property rights and any benefits derived from such rights. With respect to secondary uses of phonograms by means of analog communications, analog free over-the-air radio broadcasting, and analog free over-the-air television broadcasting, however, a Party may limit the rights of performers and producers of phonograms of the other Party to the rights its persons are accorded in the territory of the other Party.
7. A Party may derogate from paragraph 6 in relation to its judicial and administrative procedures, including requiring a national of the other Party to designate an address for service of process in its territory, or to appoint an agent in its territory, provided that such derogation is:
(a) necessary to secure compliance with laws and regulations that are not inconsistent with this Chapter; and
(b) not applied in a manner that would constitute a disguised restriction on trade.
8. Paragraph 6 does not apply to procedures provided in multilateral agreements to which either Party is a party concluded under the auspices of the WIPO in relation to the acquisition or maintenance of intellectual property rights.
Application of Agreement to Existing Subject Matter and Prior Acts
9. Except as it provides otherwise, including in Article 18.4.5, this Chapter gives rise to obligations in respect of all subject matter existing at the date this Agreement enters into force that is protected on that date in the territory of the Party where protection is claimed, or that meets or comes subsequently to meet the criteria for protection under this Chapter.
10. Except as otherwise provided in this Chapter, including in Article 18.4.5, a Party shall not be required to restore protection to subject matter that on the date this Agreement enters into force has fallen into the public domain in the territory of the Party where the protection is claimed.
11. This Chapter does not give rise to obligations in respect of acts that occurred before the date this Agreement enters into force.
Transparency
12. Further to Article 21.1 (Publication), and with the object of making the protection and enforcement of intellectual property rights transparent, each Party shall ensure that all laws, regulations, and procedures concerning the protection or enforcement of intellectual property rights are in writing and are published, (4) or where publication is not practicable made publicly available, in its national language in such a manner as to enable governments and right holders to become acquainted with them.