5. When a procuring entity receives a tender whose price is abnormally lower than the prices of the other tenders submitted, the entity may verify with the supplier whether the supplier complies with the conditions for participation and has the capacity to perform the contract.
6. A procuring entity may not cancel a procurement or terminate or modify a procurement contract that has been awarded for the purpose of evading this Chapter.
Article 17.15. Transparency of Procurement Information Information to Be Provided to Suppliers
1. A procuring entity shall promptly inform participating suppliers of its decision on the award of a procurement contract and, upon request, shall do so in writing. Subject to Article 17.16, a procuring entity shall, upon request, inform a supplier whose tender was not successful of the reasons for its decision and the relative advantages of the successful tender.
Publication of Award Information
2. As soon as practicable after an award, a procuring entity shall publish in an electronic medium readily accessible to the public, a notice that includes, at a minimum, the following information about the contract award:
(a) the name of contracting entity;
(b) a description of goods or services contracted;
(c) the date of the award;
(d) the name of the supplier to whom the contract was awarded; (e) the value of the contract; and
(f) where the procuring entity has not used open tendering, an indication of the circumstances that justified the use of such procedures in accordance with paragraph 2 of Article 17.12.
Record Keeping
3. A procuring entity shall maintain reports or records of procurement proceedings relating to covered procurement, including reports relating to covered procurement, including the reports referred to in paragraph 3 of Article 17.12, and shall maintain such reports or records for a period of at least three years after the date of award of a contract.
Article 17.16. Disclosure of Information Delivery of Information to the other Party
1. On request of a Party, the other Party shall provide in a timely manner information necessary to determine whether a procurement has been conducted fairly, impartially and accordance with this Chapter. Such information shall include information on the characteristics and relative advantages of the successful tender.
Non-Disclosure of Information
2. No Party, including its contracting entities, authorities or review bodies, may disclose information that the person who provided it has designated as confidential, in accordance with its national legislation, except with the authorization of that person.
3. Without prejudice to any other provision of this Chapter, no Party, including its procuring entities, shall provide any particular supplier with information that may prejudice fair competition between suppliers.
4. Nothing in this Chapter shall be construed to require Party, including its contracting entities, authorities and review bodies, to disclose confidential information under this Chapter, if such disclosure would:
(a) prevent compliance with the law;
(b) harm fair competition among suppliers;
(c) prejudice the legitimate commercial interests of private parties, including the protection of intellectual property; or
(d) otherwise be contrary to the public interest.
Article 17.17. National Review Procedures
1. Each Party shall ensure that its procuring entities give fair and timely consideration to any complaint by its suppliers regarding an allegation of non-compliance with this Chapter arising in the context of a covered procurement in which they have or have had an interest.
2. Each Party shall provide a timely, effective, transparent and non-discriminatory administrative or judicial review procedure, in accordance with the principle of due process, through which a supplier may file a complaint alleging a breach of this Chapter arising in the context of covered procurement in which the supplier has or has had an interest.
3. Each Party shall establish or designate at least one impartial administrative or judicial authority, independent of its procuring entities, to receive and review a challenge filed by a supplier in a covered procurement, and to issue appropriate determinations and recommendations.
4. Where a body other than the authority referred to in paragraph 3 initially reviews a challenge, the Party shall ensure that the supplier may appeal the initial decision to an administrative or judicial authority, which is independent of the procuring entity whose procurement is the subject of the challenge.
5. Each Party shall adopt or maintain procedures that it establishes:
(a) interim measures to preserve the supplier's ability to participate in the procurement, which are applied by the procuring entity or by the impartial authority referred to in paragraph 3. The procedures may provide that the prevailing adverse consequences for the interests concerned, including the public interest, may be taken into account in deciding whether such measures should be applied. The reason for not taking such measures shall be stated in writing; and
(b) where a review body has determined the existence of a non-compliance referred to in paragraph 2, corrective measures or a compensation for loss or damage suffered, accordance with the national legislation of each Party.
Article 17.18. Modification and Amendments to Coverage
1. When a Party modifies its procurement coverage under this Chapter, the Party:
(a) notify the other Party in writing; and
(b) shall include in the notification a proposal for appropriate compensatory adjustments to the other Party to maintain a level of coverage comparable to that existing prior to the modification.
2. Notwithstanding subparagraph 1b), a Party need not grant compensatory adjustments where:
(a) the modification in question is a minor amendment or a rectification of a purely formal nature; or
(b) the proposed modification covers an entity over which the Party has effectively eliminated control or influence.
3. If the other Party does not agree that:
(a) an adjustment under the scope of subparagraph 1 (b) is adequate to maintain a comparable level of mutually agreed coverage;
(b) the proposed modification is a minor amendment or rectification within the scope of subparagraph 2 (a); or
(c) the proposed modification covers a contracting entity over which the Party has effectively eliminated its control or influence under the scope of subparagraph 2(b).
must object in writing within 30 days of receipt of the notice referred to paragraph 1 or agreement on the proposed change or modification shall be deemed to have been reached even for the purposes of Chapter 24 (Dispute Settlement).
4. When the Parties agree on the proposed modification, rectification or amendment, including when a Party has not objected within 30 days under the scope of paragraph 3, the Parties shall give effect to the agreement by immediately modifying Annex 17.1 through the Commission.
Article 17.19. Integrity In Procurement Practices
Each Party shall establish or maintain procedures for declaring the ineligibility to participate in the Party's procurement, either indefinitely or for a prescribed period, of suppliers that the Party determines to have engaged in illegal or fraudulent activities relating to government procurement. Upon request of the other Party, the Party receiving the request shall identify the suppliers determined to be ineligible under these procedures and, where appropriate, exchange information with respect to these suppliers or the fraudulent or illegal activity.
Article 17.20. Additional Negotiations
At the request of a Party, the other Party may consider conducting additional negotiations for the purpose of expanding the scope and coverage of this Chapter. If as a result of these negotiations the Parties agree to modify the Annexes to this Chapter, the result shall be submitted to the Committee for implementation.
Article 17.21. Strategic Procurement
1. The Parties recognize the instrumental nature of public procurement for economic and social progress and general welfare. They also recognize the importance of consolidating public policies aimed at equitable social development and the economic promotion of vulnerable sectors, environmental protection and the promotion of innovation, among others.
2. The Parties recognize the importance of the participation of micro, small and medium- sized enterprises in government procurement and the importance of business alliances between suppliers of each Party, and in particular micro, small and medium-sized enterprises, including joint participation in bidding procedures.
3. In such a way that the commitments of this Chapter are not violated, the Parties may incorporate strategies to include preferential rules for MSMEs, as well as to promote the
participation of social groups in vulnerable conditions, environmental protection and the encouragement of innovation, among others.
Article 17.22. Cooperation
1. The Parties recognize the importance of cooperation as a way to achieve a better understanding of their respective government procurement systems, as well as better access to their respective markets, particularly for micro, small and medium-sized enterprises.
2. The Parties shall make their best efforts to cooperate on issues such as:
(a) exchange of experiences and information, including regulatory framework, best practices and statistics;
(b) development and use of electronic means of information in public procurement systems;
(c) training and technical assistance to suppliers on access to the public procurement market; and
(d) institutional strengthening for compliance with this Chapter, including the training of public officials.
Article 17.23. Public Procurement Committee
1. The Parties hereby establish a Procurement Committee (hereinafter referred to as "the Committee"), composed of:
(a) for Costa Rica by the Ministry of Foreign Trade and the Public Procurement Directorate, or their successors;
(b) for Ecuador by the Ministry of Production, Foreign Trade, Investment and Fishing and the National Public Procurement Service, or their successors.
2. The functions of the Committee shall include:
(a) monitor the implementation and administration of this Chapter, including its use, and recommend appropriate activities to the Commission,
(b) report to the Commission on the implementation and administration of this Chapter, as appropriate,
(c) evaluate and follow up on cooperation activities;
(d) consider conducting additional negotiations with the objective of expanding the coverage of this Chapter; and
(e) to deal with any other matter related to this Chapter.
3. Unless otherwise agreed by the Parties, the Committee shall meet every two years in ordinary session, on a date mutually agreed by the Parties. The Parties shall determine those cases in which extraordinary meetings may be held.
4. The meetings may be held in person or by any technological means. When they are face-to-face, they shall be held alternately in the territory of each Party, and the host Party shall be responsible for organizing and chairing the meeting, unless the Parties agree otherwise. The first meeting of the Committee shall be held no later than one year after the date of entry into force of this Agreement.
5. Unless otherwise agreed by the Parties, the Committee shall be of a permanent nature and shall develop its working rules.
Article 17.24. Definitions
For the purposes of this Chapter:
notice of intended procurement means a notice published by the procuring entity inviting interested suppliers to submit a request for participation, a bid, or both;
conditions for participation means any registration, qualification or other prerequisites for participation in a public procurement;
contracting entity means an entity listed in Annex 17.1;
written or in writing means any expression in words, numbers or other symbols, which can be read, reproduced and subsequently communicated. It may include information transmitted and stored electronically;
technical specification means a procurement requirement that:
(a) establishes the characteristics of the goods or services to be contracted, including quality, performance, safety and dimensions, or the processes and methods for their production or provision; or
(b) establish terminology, symbols, packaging, marking or labeling requirements as they apply to a good or services;
open bidding means a method of procurement in which all interested suppliers may submit a bid;
restricted tendering means a method of procurement by which a procuring entity contacts a supplier or suppliers of its choice;
commercial goods or services means goods or services of a type generally sold or offered for sale in the commercial market to, and normally purchased by, nongovernmental purchasers for nongovernmental purposes;
standard means a document approved by a recognized body, which provides, for common and repeated use, rules, guidelines or characteristics for goods, or services or related processes and methods of production, compliance with which is not mandatory. It may also include or refer exclusively to terminology, symbols, packaging, markings or labeling requirements as they apply to a product, service, process or production method;
supplier means a person who provides or could provide goods or services to a contracting entity;
services include construction services, unless otherwise specified;
construction service means a service the object of which is the performance by whatever means of civil or construction work, based on Division 51 of the provisional version of United Nations Central Product Classification (CPC); and.
electronic auction means an iterative process in which suppliers use electronic means to submit new prices or new values for quantifiable non-price bid elements, or both, that are linked to the evaluation criteria, and which results in a ranking or reclassification of bids.
Chapter 18. Micro, Small and Medium Enterprises
Article 18.1. General Principles
1. The Parties recognize that MSMEs contribute significantly to trade, economic and financial growth, employment, innovation and social stability.
2. The Parties shall endeavor to support the growth and development of MSMEs, increasing their capacity to participate in and benefit from the opportunities created by this Agreement.
3. The Parties recognize that, in addition to the provisions of this Chapter, there are other provisions in this Agreement that seek to enhance cooperation between the Parties on matters related to MSMEs or that may be particularly beneficial to MSMEs.
Article 18.2. Exchange of Information
1. Each Party shall establish or maintain its own publicly accessible website containing information with respect to this Agreement, including:
(a) the text of this Agreement;
(b) a summary of this Agreement; and
(c) information for MSMEs, containing:
(i) a description of the provisions of this Agreement that the Party considers relevant to MSMEs; and.
(ii) any additional information that the Party considers useful for MSMEs interested in benefiting from the opportunities granted by this Agreement.
2. Each Party shall include, on the site referred to in paragraph 1, links :
(a) the equivalent websites of the other Party; and
(b) the websites of its government agencies and other appropriate entities that provide information that the Party considers useful to any person interested in trading, investing or doing business in the territory of that Party.
3. Subject to the legislation of each Party, the information described in paragraph 2 (b) may include:
(a) customs regulations and procedures;
(b) regulations and procedures on intellectual property rights;
(c) technical regulations, standards, and sanitary and phytosanitary measures related to import and export;
(d) foreign investment regulations;
(e) business registration procedures;
(f) information on networking and innovation ecosystems in the sector;
(g) labor regulations; and
(h) tax information.
4. Each Party shall regularly review the information and links on the websites referred to in paragraphs 1 and 2 to ensure that such information and links are correct and up to date.
5. Each Party shall ensure that the information contained in this Article is presented in a clear and practical manner, with emphasis on facilitating access and use by MSMEs.
Article 18.3. Focal Points
1. The Parties establish the following focal points:
(a) in the case of Costa , the Ministry of Economy, Industry and Commerce, through the General Directorate for the Support of Small and Medium Enterprises (DIGEPYME), and the Ministry of Foreign Trade, through the General Directorate of Foreign Trade, for communications with the Commission and any other matter within its competence or its successors; and
(b) in the case of Ecuador, the Ministry of Production, Foreign Trade, Investment and Fisheries through the Undersecretariat of MSMEs and Handicrafts, or its successor.
2. The focal points shall:
(a) identify ways to assist MSMEs of the Parties to take advantage of the commercial opportunities under this Agreement;
(b) exchange and discuss the experiences and best practices of each Party supporting and assisting MSMEs;
(c) coordinate, if necessary, with other institutions when specific information, which does not fall within the functions of the focal points, is required regarding, among others:
(i) training programs;
(ii) trade, finance, market and innovation education;
(iii) trade financing;
(iv) fair trade and responsible consumption;
(v) identification of other commercial, technological and service partners;
(vi) market studies; and
(vii) the establishment of good trade practices;
(d) recommend additional information that a Party may include on the website referred to in Article 18.2;
(e) review and coordinate the work program with other focal points, committees, working groups or any other subsidiary bodies established under this Agreement, as well as those of other relevant international organizations, in order not to duplicate those work programs and to identify appropriate opportunities for cooperation to enhance the capacity of MSMEs to engage in the trade and investment provided by this Agreement;
(f) facilitate the development of programs to assist MSMEs to participate and integrate effectively in global value chains;
(g) exchange information to assist in monitoring the implementation of this Agreement;
(h) report findings and make recommendations to the Commission that may be included in future assistance programs and MSME programs, as appropriate; and
(i) consider any other matters related to MSMEs that the focal points may decide, including any issues raised by MSMEs regarding their ability to benefit from this Agreement.
3. The focal points shall meet as agreed by the Parties, in person or by any technological means, to consider any matter related to this Chapter.
Article 18.4. Dialogue on MSMEs
The Parties shall make every effort, through dialogue, consultation and cooperation, to reach consensus on any matter that may arise regarding the interpretation and application of this Chapter.
Article 18.5. Non-Application of Dispute Resolution
Neither Party may have recourse to the dispute settlement mechanism provided for in Chapter 24 (Dispute Settlement) with respect to any matter arising under this Chapter.
Chapter 19. Trade and Gender
Article 19.1. General Provisions
1. The Parties recognize the importance of incorporating a gender perspective in the promotion of inclusive economic growth, and the fundamental role that public policies for gender equality can play in achieving sustainable economic development, which aims, among other things, to distribute the benefits among the entire population, offering equal opportunities between men and women in access to and permanence in the labor market, business, trade and industry.
2. The Parties recognize their commitment to the United Nations 2030 Agenda for Sustainable Development, especially Goal 5 on achieving gender equality and empowering all women and girls.
3. The Parties undertake to promote policies and good practices for gender equality and to strengthen the capacity of the Parties in this area, including in non-governmental sectors, in order to promote equality of rights, treatment and opportunities between men and women and the elimination of all forms of discrimination and all types of violence against women.
4. The Parties recognize that international trade and investment are engines of economic growth, and that improving women's access to opportunities and removing barriers in their countries enhances their participation in both the national and international economy and contributes to sustainable economic development.
5. The Parties recognize that the increased participation of women in the labor market and their economic autonomy, as well as the facilitation of their access, use and control of economic resources, contribute to sustainable and inclusive economic growth, prosperity, competitiveness and the well-being of society as a whole.