Article 15.7. Conditions for Suppliers' Participation In Procurement
1. | Where an entity requires suppliers to satisfy registration, qualification, or any other requirements or conditions before being permitted to participate in a procurement, each Party shall ensure that a notice inviting suppliers to apply for registration, qualification or demonstration of the suppliers' satisfaction of any other conditions for participation is published sufficiently in advance for interested suppliers to prepare and submit responsive applications and for entities to evaluate and make their determinations based on such applications.
2. Each Party shall ensure that any conditions for participation in a procurement are limited to those that are essential to ensure that the potential supplier has the legal, technical and financial abilities to fulfill the requirements and technical specifications of the procurement and that qualification decisions are based solely on the conditions for participation that have been specified in advance in notices or tender documentation.
3. Entities shall be allowed to establish a publicly available list of suppliers qualified to participate in procurements. Where an entity requires suppliers to qualify for such a list before being permitted to participate in a procurement, and a supplier that has not previously satisfied such requirements or conditions submits an application, the entity shall promptly start the relevant procedures and shall allow such supplier to participate in the procurement, provided there is sufficient time to complete the procedures within the time period established for tendering.
4. Entities shall not impose the condition that, in order for a supplier to participate in a procurement, the supplier has previously been awarded one or more contracts by an entity of that Party or that the supplier has prior work experience in the territory of that Party.
Article 15.8. Publication of Advance Notices
1. For each contract covered by this Chapter, entities shall publish in advance a notice inviting interested suppliers to submit tenders for that contract, except as provided for in Article 15.6.2.
2. The information in each advance notice of intended procurement shall include a description of the intended procurement, any conditions that suppliers must fulfill to participate in the procurement, the name of the entity, the address where all documents relating to the procurement may be obtained and the time limits for submission of tenders.
3. Entities shall publish the notices in a timely manner through means which offer the widest possible and non-discriminatory access to the interested suppliers of the Parties. These means shall be accessible free of charge through a single point of access specified in Annex 15.2.
Article 15.9. Tender Documentation
1. Tender documentation provided to suppliers shall contain all information necessary to permit them to submit responsive tenders.
2. Where contracting 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 supplier of the Parties.
Article 15.10. Time-Limits
1. Time-limits established by the entities during a procurement process shall be sufficiently long to enable suppliers to prepare and submit responsive tenders, in relation to the nature and complexity of the procurement.
2. Notwithstanding paragraph 1, entities shall establish no less than ten days between the date on which the advance notice of intended procurement is published and the final date for the submission of tenders.
Article 15.11. Technical Specifications
1. Technical specifications shall be set out in the notices, tender documents or additional documents.
2. Each Party shall ensure that its entities do not prepare, adopt or apply any technical specifications with a view to, or with the effect of, creating unnecessary obstacles to trade between the Parties.
3. Technical specifications prescribed by entities shall:
(a) be in terms of performance and functional requirements, rather than design or descriptive characteristics; and
(b) be based on international standards, where they exist or, in absence of such standards, on national technical regulations (3), recognised national standards (4) or building codes.
4. Paragraph 3 does not apply when the entity may objectively demonstrate that the use of technical specifications referred to in that paragraph would be ineffective or inappropriate for the fulfillment of the legitimate objectives pursued.
5. In all cases, entities shall consider bids which do not comply with the technical specifications but meet the essential requirements thereof and are fit for the purpose intended. The reference to technical specifications in the tender documents must include words such as "or equivalent".
6. There shall be no requirement or reference to a particular trademark or trade name, patent, design or type, specific origin, producer or supplier, unless there is no sufficiently precise or intelligible way of describing the procurement requirements and provided that words, such as "or equivalent", are included in the tender documentation.
7. The tenderer shall have the burden of proof to demonstrate that its bid meets the essential requirements.
Article 15.12. Awarding of Contracts
1. To be considered for award, a tender must, at the time of opening, conform to the essential requirements of the notices or tender documentation and be submitted by a tenderer who complies with the conditions for participation.
2. Unless an entity determines that it is not in the public interest to award a contract, entities shall award the contract to the tenderer who has been determined to be fully capable of undertaking the contract and whose tender is determined to be the most advantageous in terms of the requirements and evaluation criteria set forth in the tender documentation.
3. Each Party shall ensure that its entities provide for effective dissemination of the results of government procurement processes.
Article 15.13. Bid Challenges
1. Entities shall accord impartial and timely consideration to any complaints from suppliers regarding an alleged breach of this Chapter in the context of a procurement procedure.
2. Each Party shall provide non-discriminatory, timely, transparent and effective procedures enabling suppliers to challenge alleged breaches of this Chapter, arising in the context of procurements in which they have, or have had, an interest.
3. Challenges shall be heard by an impartial and independent reviewing authority. A reviewing authority which is not a court shall either be subject to judicial review or shall have procedural guarantees similar to those of a court.
4. Challenge procedures shall provide for, if appropriate, correction of the breach of this Chapter or, in the absence of such correction, compensation for the loss or damages suffered, which may be limited to costs for tender preparation and protest.
Article 15.14. Information Technology and Cooperation
1. The Parties shall, to the extent possible, endeavour to use electronic means of communication to permit efficient dissemination of information on government procurement, particularly as regards tender opportunities offered by entities, while respecting the principles of transparency and non-discrimination.
2. The Parties shall endeavour to provide each other with technical cooperation and assistance through the development of training programs with a view to achieving a better understanding of their respective government procurement systems and statistics, as well as a better access to their respective markets.
Article 15.15. Modifications to Coverage
1. A Party may modify its coverage under this Chapter, provided that it:
(a) notifies the other Party of the modification; and
(b) provides the other Party, within 30 days following the date of such notification, appropriate compensatory adjustments to its coverage in order to maintain a level of coverage comparable to that existing prior to the modification.
2. Notwithstanding subparagraph 1(b), no compensatory adjustments shall be provided to the other Party where the modification by a Party of its coverage under this Chapter concerns:
(a) rectifications of a purely formal nature and minor amendments to Annex 15.1; or
(b) one or more covered entities on which government control or influence has been effectively eliminated as a result of privatisation.
3. Where appropriate, the Commission shall by decision modify the relevant Annex to reflect the modification notified by the Party concerned.
Article 15.16. Further Negotiations
In the case that either Party offers, in the future, a non-Party additional advantages with regard to the government procurement market access coverage agreed under this Chapter, it shall agree, upon request of the other Party, to enter into negotiations with a view to extending coverage under this Chapter on a reciprocal basis.
Article 15.17. Government Procurement Working Group
Upon request of a Party, the Parties shall convene a Government Procurement Working Group to address issues related to the implementation of this Chapter. Such issues may include:
(a) bilateral cooperation relating to the development and use of electronic communications in government procurement systems;
(b) exchange of statistics and other information needed for monitoring procurement conducted by the Parties and the results of the application of this Chapter; and
(c) exploration of potential interest in further negotiations aimed at further broadening of the scope of market access commitments under this Chapter.
Part V. INTELLECTUAL PROPERTY RIGHTS
Chapter 16. INTELLECTUAL PROPERTY RIGHTS
Article 16.1. Obligations
1. Each Party shall provide, in its territory, to the nationals of the other Party adequate and effective protection and enforcement of intellectual property rights, while ensuring that measures to enforce intellectual property rights do not themselves become unnecessary barriers to legitimate trade.
2. To provide adequate and effective protection and enforcement of intellectual property rights, each Party shall faithfully implement the international conventions it has acceded to, including the TRIPS Agreement.
Article 16.2. More Extensive Protection
A Party may implement in its domestic law more extensive protection of intellectual property rights than is required under this Agreement, provided that such protection is not inconsistent with this Agreement and the TRIPS Agreement.
Article 16.3. Protection of Trademarks
1. Article 6 bis of the Paris Convention shall apply, mutatis mutandis, to services. In determining whether a trademark is well known, the Parties shall take account of the knowledge of the trademark in the relevant sector of the public, including knowledge in the Party concerned, obtained as a result of the promotion of the trademark.
2. If the use of a trademark is required by the legislation of a Party to maintain registration, the registration may be cancelled only after an uninterrupted period of at least three years of non- use, unless valid reasons based on the existence of obstacles to such use are shown by the trademark owner.
3. When subject to the control of its owner, use of a trademark by another person shall be recognized as use of the trademark for the purpose of maintaining the registration.
Article 16.4. Protection of Geographical Indications
1. For the purpose of this Agreement, geographical indications are indications, which identify a good as originating in the territory of a Party, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.
2. With the recognition of the importance of the protection of geographical indications, both Parties shall protect, in compliance with their respective domestic legislation, the geographical indications of the other Party registered and/or protected by that other Party, that fall within the scope of protection stated in Articles 22, 23 and 24 of the TRIPS Agreement. Further to the acceptance of this obligation, both Parties shall not permit the importation, manufacture and sale of products, in compliance with their respective domestic legislation, which use such geographical indications of the other Party, unless such products have been produced in that other Party.
3. Chile shall protect the geographical indications listed in Annex 16.4.3 for their exclusive use in products originating in Korea. Chile shall prohibit the importation, manufacture and sale of products with such geographical indications, unless they have been produced in Korea, in accordance with the applicable Korean law.
4. Korea shall protect the geographical indications listed in Annex 16.4.4 for their exclusive use in products originating in Chile. Korea shall prohibit the importation, manufacture and sale of products with such geographical indications, unless they have been produced in Chile, in accordance with the applicable Chilean law. This shall in no way prejudice the rights that Korea may recognize, in addition to Chile, exclusively to Peru with respect to "Pisco".
5. Within two years from the entry into force of this Agreement, both Parties shall enter into consultations to protect additional geographical indications. As a result of these consultations, both Parties shall protect and/or recognize, under the terms stated in this Agreement, the geographical indications listed in Annex 16.4.5 and any additional geographical indications submitted by the Parties that fall within the scope of protection of geographical indications set out in Articles 22, 23 and 24 of the TRIPS Agreement.
Article 16.5. Enforcement
The Parties shall provide in their respective laws for the enforcement of intellectual property rights consistent with the TRIPS Agreement, in particular, Articles 41 to 61 thereof.
Article 16.6. Consultative Mechanism
Any consultations between the Parties with respect to the implementation or interpretation of this Chapter shall be carried out under the dispute settlement procedures referred to in Chapter 19.
Part VI. ADMINISTRATIVE AND INSTITUTIONAL PROVISIONS
Chapter 17. TRANSPARENCY
Article 17.1. Definitions.
For purposes of this Chapter:
administrative ruling of general application means an administrative ruling or interpretation that applies to all persons and fact situations that fall generally within its ambit and that establishes a norm of conduct but does not include:
(a) a determination or ruling made in an administrative or quasi-judicial proceeding that applies to a particular person, good or service of the other Party in a specific case; or
(b) a ruling that adjudicates with respect to a particular act or practice.
Article 17.2. Contact Points
1. Each Party shall designate a contact point to facilitate communications between the Parties on any matter covered by this Agreement.
2. Upon request of a Party, the contact point of the other Party shall indicate the office or official responsible for the matter and assist, as necessary, in facilitating communication with the requesting Party.
Article 17.3. Publication
1. Each Party shall ensure that its laws, regulations, procedures and administrative rulings of general application relating to any matter covered by this Agreement are promptly published or otherwise made publicly available.
2. To the extent possible, each Party shall: (a) publish in advance any such measure that it proposes to adopt; and (b) provide interested persons and the other Party a reasonable opportunity to comment on such proposed measures.
Article 17.4. Notification and Provision of Information
1. To the maximum extent possible, each Party shall notify the other Party of any proposed or actual measure that the Party considers might materially affect the operation of this Agreement or otherwise substantially affect the other Party's interests under this Agreement.
2. Upon request of the other Party, a Party shall promptly provide information and respond to questions pertaining to any actual or proposed measure, whether or not the other Party has been previously notified of that measure.
3. Any notification or information provided under this Article shall be without prejudice as to whether the measure is consistent with this Agreement.
4. The information referred to under this Article shall be considered to have been provided when it has been made available by appropriate notification to the WTO or when it has been made available on the official, public and fee-free accessible website of the Party concerned.
Article 17.5. Exchange of Information on State Aid
Each Party may request information on individual cases of state aid that it believes to affect trade between the Parties. The requested Party shall make its best efforts to provide non- confidential information.
Article 17.6. Administrative Proceedings
With a view to administering in a consistent, impartial and reasonable manner all measures of general application affecting matters covered by this Agreement, each Party shall ensure that in its administrative proceedings applying measures referred to in Article 17.3 to particular persons, goods or services of the other Party in specific cases:
(a) wherever possible, persons of the other Party that are directly affected by a proceeding are provided with a reasonable notice, in accordance with domestic procedures, when a proceeding is initiated, including a description of the nature of the proceeding, a statement of the legal authority under which the proceeding is initiated and a general description of any issues in controversy;
(b) such persons are afforded with a reasonable opportunity to present facts and arguments in support of their positions prior to any final administrative action, when time, the nature of the proceeding and the public interest permit; and
(c) its procedures are in accordance with its domestic law.
Article 17.7. Review and Appeal
1. Each Party shall establish or maintain judicial, or administrative tribunals or procedures for the purpose of the prompt review and, where warranted, correction of final administrative actions regarding matters covered by this Agreement. Such tribunals shall be impartial and independent of the office or authority entrusted with administrative enforcement and shall not have any substantial interest in the outcome of the matter.
2. Each Party shall ensure that, in any such tribunals or procedures, the parties to the proceeding are provided with the right to: (a) areasonable opportunity to support or defend their respective positions; and (b) a decision based on the evidence and submissions of record and, where required by domestic law, the record compiled by the administrative authority.
3. Each Party shall ensure, subject to appeal or further review as provided in its domestic law, that such decisions shall be implemented by, and shall govern the practice of, the offices or authorities with respect to the administrative action at issue.
Chapter 18. ADMINISTRATION OF THE AGREEMENT
Article 18.1. The Free Trade Commission
1. The Parties hereby establish the Free Trade Commission, comprising officials referred to in Annex 18.1.1 or their designees.
2. The Parties, through the Commission, shall:
(a) supervise the implementation and appropriate application of the provisions of this Agreement;
(b) evaluate the results obtained in the course of the application of this Agreement;
(c) supervise the work of the committees and working groups established under this Agreement, referred to in Annex 18.1.2(c);
(d) ensure that, with regard to public enterprises and enterprises to which special or exclusive rights have been granted, in fulfillment of Article 14.8, following the date of entry into force of this Agreement, any measure distorting trade in goods or services between the Parties is neither enacted or maintained to an extent contrary to the Parties interests; and
(e) consider any other matter that may affect the operation of this Agreement, or that is entrusted to the Commission by the Parties.
3. Inthe fulfillment of its functions, the Commission may:
(a) establish and delegate responsibilities to ad hoc or standing committees, working groups or expert groups and assign them with tasks on specific matters;
(b) seek the advice of non-governmental persons or groups;
(c) modify, in accordance with Annex 18.1.3(c):
(i) the established rules of origin in Annex 4;
(ii) the Schedules established in Annex 3.4, in order to accelerate the tariff elimination process;
(iii) the Uniform Regulations; and
(iv) the Annexes 15.1 and 15.2 (Government procurement); and
(d) take such other action in the exercise of its functions, as the Parties may agree.
4. The Commission shall establish its rules and procedures. All decisions of the Commission shall be adopted by mutual agreement between the Parties.
5. The Commission shall convene at least once a year in regular session. Regular sessions of the Commission shall be chaired alternately by each Party.
Article 18.2. The Secretariat
1. Each Party hereby designates the competent national organ referred to in Annex 18.2 to serve as its Secretariat for purposes of this Agreement.
2. For purposes of this Agreement, all communication or notification to or by a Party shall be made through its Secretariat.
Annex 18.1.1. Officials of the Free Trade Commission
For purposes of Article 18.1, officials of the Commission are:
(a) in the case of Chile, the Minister of Foreign Affairs, or her/his designees; and (b) inthe case of Korea, the Minister for Trade, or her/his designees.
Annex 18.1.2(c). Committees and Working Groups
1. Committees:
(a) Committee on Trade in Goods;
(b) Committee on Sanitary and Phytosanitary Measures;
(i) Sub-Committee on Animal Health;
(ii) Sub-Committee on Plant Protection; and
(iii) Sub-Committee on Food Safety;
(c) Committee on Standards-Related Measures;
(d) Investment and Cross-Border Trade in Services Committee; and
(e) Committee on Telecommunications Standards.
2. Working Groups:
(a) Temporary Entry Working Group; and
(b) Government Procurement Working Group.
Annex 18.1.3(c). Implementation of Decisions Adopted by the Commission
The Parties shall implement decisions of the Commission, referred to in Article 18.1.3(c), according to their respective domestic legislation and the following procedures:
(a) in the case of Chile, by means of executive agreements, in conformity with Article 50 N°1, second paragraph of the Political Constitution of the Republic of Chile; and
(b) in the case of Korea, in conformity with Article 60.1 of the Constitution of the Republic of Korea.
Annex 18.2. The Secretariat
For purposes of Article 18.2, the competent national organs of the Parties are:
(a) for Chile, the General Directorate of International Economic Affairs of the Ministry of Foreign Affairs, or its successor; and