(d) where appropriate, facilitating sectoral cooperation between governmental and non-governmental conformity assessment bodies in the territories of two or more Parties;
(e) exchanging information on developments in non-governmental, regional, and multilateral fora engaged in activities related to standards, technical regulations, and conformity assessment procedures;
(f) at a Party's request, consulting on any matter arising under this Chapter;
(g) reviewing this Chapter in light of any developments under the TBT Agreement and developing recommendations for amendments to this Chapter in light of those developments;
(h) taking any other steps the Parties consider will assist them in implementing this Chapter and the TBT Agreement and in facilitating trade;
(i) as it considers appropriate, reporting to the Commission on the implementation of this Chapter;
(j) establishing, if necessary, for particular issues or sectors, working groups for the treatment of specific matters related to this Chapter and the TBT Agreement; and
(k) exchanging information, at a Party's request, on the Parties' respective views regarding third party issues concerning standards, technical regulations, and conformity assessment procedures so as to foster a common approach to their resolution.
3. When a Party requests consultations under subparagraph 2(f), the Parties shall make every effort to obtain a mutually satisfactory solution within 60 days .
4. Where the Parties have had recourse to consultations under subparagraph 2(f), such consultations shall constitute consultations under Article 21.4 (Consultations).
5. The Committee shall meet at least once a year unless the Parties otherwise agree. The Committee shall carry out its work through the communication channels agreed to by the Parties, which may include electronic mail, videoconferencing, or other means.
6. All decisions of the Committee shall be made by consensus unless the Committee decides otherwise.
Article 7.8. Information Exchange
1. If a Party requests any information or explanation pursuant to the provisions of this Chapter, the other Party shall provide such information or explanation in print or electronically within a reasonable time. A Party shall endeavor to respond to each such request within 60 days.
2. With respect to information exchanges, in compliance with Article 10 of the TBT Agreement, each Party shall apply the recommendations set out in Decisions and Recommendations adopted by the Committee since 1 January 1995, G/TBT/1/Rev. 8, 23 May 2002, Section IV (Procedure for information exchanges) issued by the WTO Committee on Technical Barriers to Trade.
Article 7.9. Definitions
For purposes of this Chapter:
central government body, conformity assessment procedures, standard, and technical regulation shall have the meanings assigned to those terms in Annex 1 of the TBT Agreement; and
TBT Agreement means the WTO Agreement on Technical Barriers to Trade.
Chapter Eight. Trade Remedies
Section A. Safeguard Measures
Article 8.1. Imposition of a Safeguard Measure
1. A Party may apply a measure described in paragraph 2, during the transition period only, if as a result of the reduction or elimination of a duty pursuant to this Agreement, (1) an originating good is being imported into the Party's territory in such increased quantities, in absolute terms or relative to domestic production, and under such conditions as to constitute a substantial cause of serious injury, or threat thereof, to a domestic industry producing a like or directly competitive good.
2. If the conditions in paragraph 1 are met, a Party may to the extent necessary to prevent or remedy serious injury, or threat thereof, and facilitate adjustment:
(a) suspend the further reduction of any rate of duty provided for under this Agreement on the good; or
(b) increase the rate of duty on the good to a level not to exceed the lesser of
(i) the most-favored-nation (MFN) applied rate of duty in effect at the time the measure is applied, and
(ii) the MFN applied rate of duty in effect on the day immediately preceding the date of entry into force of this Agreement. (2)
3. A Party shall apply a safeguard measure to imports of an originating good (3) irrespective of their source.
4. No Party may apply a safeguard measure against an originating good of another Party as long as the exporting Party's share of imports of the originating good in the importing Party does not exceed three percent, provided that Parties with less than three percent import share collectively account for not more than nine percent of total imports of such originating good.
Article 8.2. Standards for a Safeguard Measure
1. No Party may maintain a safeguard measure:
(a) except to the extent, and for such time, as may be necessary to prevent or remedy serious injury and to facilitate adjustment;
(b) for a period exceeding two years; except that the period may be extended by up to two years if the competent authority determines, in conformity with the procedures set out in Article 8.3, that the measure continues to be necessary to prevent or remedy serious injury and to facilitate adjustment and that there is evidence that the domestic industry is adjusting; or
(c) beyond the expiration of the transition period.
2. In order to facilitate adjustment in a situation where the expected duration of a safeguard measure is over one year, the Party applying the measure shall progressively liberalize it at regular intervals during the period of application.
3. No Party may apply a safeguard measure more than once on the same good
. 4. On the termination of a safeguard measure, the rate of duty shall be no higher than the rate that, according to the Party's Schedule to Annex 2.3 (Tariff Elimination), would have been in effect one year after the initiation of the measure. Beginning on January 1 of the year following the termination of the measure, the Party that has applied the measure shall:
(a) apply the rate of duty set out in the Party's Schedule to Annex 2.3 (Tariff Elimination) as if the safeguard measure had never been applied; or
(b) eliminate the tariff in equal annual stages ending on the date set out in the Party's Schedule to Annex 2.3 (Tariff Elimination) for the elimination of the tariff.
Article 8.3. Investigation Procedures and Transparency Requirements
1. A Party shall apply a safeguard measure only following an investigation by the Party's competent authority in accordance with Articles 3 and 4.2(c) of the Safeguards Agreement; and to this end, Articles 3 and 4.2(c) of the Safeguards Agreement are incorporated into and made part of this Agreement, mutatis mutandis.
2. In the investigation described in paragraph 1, a Party shall comply with the requirements of Article 4.2(a) of the Safeguards Agreement; and to this end, Article 4.2(a) of the Safeguards Agreement is incorporated into and made part of this Agreement, mutatis mutandis.
Article 8.4. Notification and Consultation
1. A Party shall promptly notify the other Parties, in writing on:
(a) initiating a safeguard proceeding under this Chapter;
(b) making a finding of serious injury, or threat thereof, caused by increased imports under Article 8.1; and
(c) taking a decision to apply or extend a safeguard measure.
2. A Party shall provide to the other Parties a copy of the public version of the report of its competent investigating authority required under Article 8.3.1.
3. On request of a Party whose good is subject to a safeguard proceeding under this Chapter, the Party conducting that proceeding shall enter into consultations with the requesting Party to review a notification under paragraph 1 or any public notice or report that the competent investigating authority has issued in connection with the proceeding.
Article 8.5. Compensation
1. A Party applying a safeguard measure shall, after consultations with each Party against whose good the measure is applied, provide mutually agreed trade liberalizing compensation in the form of concessions having substantially equivalent trade effects or equivalent to the value of the additional duties expected to result from the measure. The Party applying the safeguard measure shall provide an opportunity for such consultations no later than 30 days after the application of the safeguard measure.
2. If the consultations under paragraph 1 do not result in an agreement on trade liberalizing compensation within 30 days, any Party against whose good the measure is applied may suspend the application of substantially equivalent concessions to the trade of the Party applying the safeguard measure.
3. A Party against whose good the measure is applied shall notify the Party applying the safeguard measure in writing at least 30 days before suspending concessions under paragraph 2.
4. The obligation to provide compensation under paragraph 1 and the right to suspend concessions under paragraph 2 shall terminate on the later of:
(a) the termination of the safeguard measure, or
(b) the date on which the rate of duty returns to the rate of duty set out in the Party's 8-3 Schedule to Annex 2.3 (Tariff Elimination).
Article 8.6. Global Safeguard Measures
1. Each Party retains its rights and obligations under Article XIX of the GATT 1994 and the Safeguards Agreement.
2. This Agreement does not confer any additional rights or obligations on the Parties with regard to actions taken pursuant to Article XIX of the GATT 1994 and the Safeguards Agreement except that a Party taking a global safeguard measure may exclude imports of an originating good of another Party if such imports are not a substantial cause of serious injury or threat thereof.
3. No Party may apply, with respect to the same good, at the same time:
(a) a safeguard measure; and
(b) a measure under Article XIX of the GATT 1994 and the Safeguards Agreement.
Article 8.7. Definitions
For purposes of this Section:
competent investigating authority means
(a) for Colombia, the Subdirección de Prácticas Comerciales del Ministerio de Comercio, Industria y Turismo, and
(b) for the United States, the U.S. International Trade Commission;
domestic industry means, with respect to an imported good, the producers as a whole of the like or directly competitive good operating within the territory of a Party or those producers whose collective production of the like or directly competitive good constitutes a major proportion of the total domestic production of such good;
safeguard measure means a measure described in Article 8.1.2;
serious injury means a significant overall impairment in the position of a domestic industry;
substantial cause means a cause which is important and not less than any other cause;
threat of serious injury means serious injury that, on the basis of facts and not merely on allegation, conjecture, or remote possibility, is clearly imminent; and
transition period means the 10-year period beginning on the date of entry into force of this Agreement, except that for any good for which the Schedule to Annex 2.3 (Tariff Elimination) of the Party applying the measure provides for the Party to eliminate its tariffs on the good over a period of more than 10 years, transition period means the tariff elimination period for the good set out in that Schedule.
Section B. Antidumping and Countervailing Measures
Article 8.8. Antidumping and Countervailing Measures
1. Each Party retains its rights and obligations under the WTO Agreement with regard to the application of antidumping and countervailing duties.
2. No provision of this Agreement, including the provisions of Chapter Twenty-One (Dispute Settlement), shall be construed as imposing any rights or obligations on the Parties with respect to antidumping or countervailing duty measures.
Chapter Nine. Government Procurement
Article 9.1. Scope and Coverage
Application of Chapter
1. This Chapter applies to any measure of a Party regarding covered procurement.
2. For purposes of this Chapter, covered procurement means a procurement of goods, services, or both:
(a) by any contractual means, including purchase, rental, or lease, with or without an option to buy, build-operate-transfer contracts, and public works concession contracts;
(b) for which the value, as estimated in accordance with paragraphs 9 and 10, as appropriate, equals or exceeds the relevant threshold in Annex 9.1;
(c) that is conducted by a procuring entity; and
(d) that is not excluded from coverage.
3. For greater certainty relating to the procurement of digital products as defined in Article 15.8 (Definitions):
(a) covered procurement includes the procurement of digital products; and
(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.
4. This Chapter does not apply to:
(a) non-contractual agreements or any form of assistance that a Party, including a government enterprise, provides, including grants, loans, equity infusions, fiscal incentives, subsidies, guarantees, and cooperative agreements;
(b) government provision of goods or services to persons or to regional or local level governments;
(c) purchases for the direct purpose of providing foreign assistance;
(d) purchases funded by international grants, loans, or other assistance, where the provision of such assistance is subject to conditions inconsistent with this Chapter;
(e) acquisition of fiscal agency or depository services, liquidation and management services for regulated financial institutions, and sale and distribution services for government debt; or
(f) hiring of government employees and related employment measures.
5. For greater certainty, this Chapter does not apply to procurement of banking, financial, or specialized services related to the following activities:
(a) the incurring of public indebtedness; or
(b) public debt management.
6. The provisions of this Chapter shall apply only between the United States and each of the other Parties to this Agreement. Five years after this Agreement enters into force for at least the United States and two other Parties, the Parties shall consult to review the application of this Chapter and determine whether it should continue to be applied on a bilateral basis.
7. Nothing in this Chapter shall prevent a Party from developing new procurement policies, procedures, or contractual means, provided that they are consistent with this Chapter.
Compliance
8. Each Party shall ensure that its procuring entities comply with this Chapter in conducting covered procurements.
Valuation
9. In estimating the value of a procurement for the purpose of ascertaining whether it is a covered procurement, a procuring entity shall:
(a) neither divide a procurement into separate procurements nor use a particular method for estimating the value of the procurement for the purpose of avoiding the application of this Chapter;
(b) take into account all forms of remuneration, including any premiums, fees, commissions, interest, other revenue streams that may be provided for under the contract, and, where the procurement provides for the possibility of option clauses, the total maximum value of the procurement, inclusive of optional purchases; and
(c) where the procurement is to be conducted in multiple parts, with contracts to be awarded at the same time or over a given period to one or more suppliers, base its calculation of the total maximum value of the procurement over its entire duration.
10. Where the total estimated maximum value of a procurement over its entire duration is not known, the procurement shall be covered by this Chapter.
Article 9.2. General Principles
National Treatment and Non-Discrimination
1. With respect to any measure covered by this Chapter, each Party shall accord unconditionally to the goods and services of the other Party and to the suppliers of the other Party offering such goods or services, treatment no less favorable than the most favorable treatment the Party accords to domestic goods, services, and suppliers.
2. With respect to any measure covered by this Chapter, a Party may not:
(a) treat a locally established supplier less favorably than another locally established supplier on the basis of degree of foreign affiliation or ownership; or
(b) discriminate against a locally established supplier on the basis that the goods or services offered by that supplier for a particular procurement are goods or services of the other Party. Tendering Procedures
3. A procuring entity shall use an open tendering procedure for covered procurement, except where Articles 9.7.3 through 9.7.5 and 9.8 apply. Rules of Origin
4. Each Party shall apply to covered procurement of goods the rules of origin that it applies in the normal course of trade to those goods.
Offsets
5. A procuring entity may not seek, take account of, impose, or enforce offsets in the qualification and selection of suppliers, goods, or services, in the evaluation of tenders, or in the award of contracts, before or in the course of a covered procurement. Measures Not Specific to Procurement
6. Paragraphs 1 and 2 shall not apply to measures respecting customs duties and charges of any kind imposed on or in connection with importation, the method of levying such duties and charges, other import regulations or formalities, or measures affecting trade in services, other than measures specifically governing covered procurements.
Article 9.3. Publication of Procurement Information
1. Each Party shall promptly publish the following information relating to a covered procurement, and any modifications or additions to this information, in an electronic or paper medium that is widely disseminated and readily accessible to the public:
(a) laws, regulations, and procedures; and
(b) judicial decisions and administrative rulings of general application.
2. Each Party shall, on request, provide to the other Party an explanation relating to such information.
Article 9.4. Publication of Notices
Notice of Intended Procurement
1. For each covered procurement, except in the circumstances described in Article 9.8, a procuring entity shall publish a notice inviting interested suppliers to submit tenders ("notice of intended procurement") or, where appropriate, applications for participation in the procurement. Any such notice shall be published in an electronic or paper medium that is widely disseminated and readily accessible to the public for the entire period established for tendering. Each Party shall encourage procuring entities to publish notices of intended procurement in a single point of entry electronic publication that is accessible through the Internet or a comparable network.
2. A procuring entity shall include the following information in each notice of intended procurement:
(a) the name and address of the procuring entity and any other information necessary to contact the entity and obtain all relevant documents relating to the procurement and, if applicable, the sum payable for the tender documentation;
(b) a description of the procurement, including the nature and, where known, quantity of the goods or services to be procured, and any conditions for participation;
(c) the time frame for delivery of goods or services or the duration of the contract;
(d) the procurement method that will be used and whether it will involve negotiations;
(e) the address and the time limit for the submission of tenders and, where appropriate, any time limit for the submission of an application for participation in a procurement; and
(f) an indication that the procurement is covered by this Chapter.
Notice of Planned Procurement
3. Each Party shall encourage its procuring entities to publish as early as possible in each fiscal year notices regarding their respective procurement plans. Such notices should include the subject matter of any planned procurement and the estimated date of the publication of the notice of intended procurement. Where the notice is published in accordance with Article 9.5.4(a), a procuring entity may apply Article 9.5.4(a) for the purpose of establishing shorter time limits for tendering.
Article 9.5. Time Limits
1. A procuring entity shall provide suppliers sufficient time to submit applications to participate in a procurement and prepare and submit responsive tenders, taking into account the nature and complexity of the procurement.
2. Except as provided for in paragraphs 3, 4, and 5, a procuring entity shall establish that the final date for the submission of tenders shall be not less than 40 days:
(a) from the date on which the notice of intended procurement is published; or
(b) where the procuring entity has used selective tendering, from the date on which the entity invites suppliers to submit tenders.
3. A procuring entity may reduce the time limit for submission of tenders by up to 10 days where the entity publishes a notice of intended procurement in accordance with Article 9.4 in an electronic medium and concurrently provides the tender documentation in an electronic medium.
4. A procuring entity may establish a time limit for tendering that is less than 40 days, or 30 days where the entity has complied with paragraph 3, provided that the time given to suppliers is sufficient to enable them to prepare and submit responsive tenders and is in no case less than 10 days before the final date for the submission of tenders, where:
(a) the procuring entity published a separate notice, including a notice of planned procurement under Article 9.4.3 at least 40 days and not more than 12 months in advance, and such separate notice contains a description of the procurement, the relevant time limits for the submission of tenders or, where appropriate, applications for participation in a procurement, and the address from which documents relating to the procurement may be obtained;
(b) the procuring entity procures commercial goods or services; or