the protection of patents, copyrights, or other exclusive rights; or
due to an absence of competition for technical reasons;
for additional deliveries by the original supplier or its authorized agents, of goods or services that were not included in the initial procurement if a change of supplier for such additional goods or services:
cannot be made for technical reasons such as requirements of interchangeability or interoperability with existing equipment, software, services, or installations procured under the initial procurement, or due to conditions under original supplier warranties; and
would cause significant inconvenience or substantial duplication of costs for the procuring entity;
for a good purchased on a commodity market or exchange;
if a procuring entity procures a prototype or a first good or service that is intended for limited trial or that is developed at its request in the course of, and for, a particular contract for research, experiment, study, or original development. Original development of a prototype or a first good or service may include limited production or supply in order to incorporate the results of field testing and to demonstrate that the prototype or the first good or service is suitable for production or supply in quantity to acceptable quality standards, but does not include quantity production or supply to establish commercial viability or to recover research and development costs. Subsequent procurements of these newly developed goods or services, however, shall be subject to this Chapter;
for new services consisting of the repetition of similar services which conform to a basic project for which an initial contract was awarded and for which the entity has indicated in the notice of intended procurement concerning the initial service that limited tendering procedures might be used in awarding contracts for such new services;
for purchases made under exceptionally advantageous conditions that only arise in the very short term, such as from unusual disposals, liquidation, bankruptcy, or receivership, but not for routine purchases from regular suppliers;
if a contract is awarded to the winner of a design contest, provided that:
the contest has been organized in a manner that is consistent with this Chapter; and
(ii) the contest is judged by an independent jury with a view to award a design contract to the winner; or
(i) in so far as is strictly necessary if, for reasons of extreme urgency brought about by events unforeseeable by the procuring entity, the good or service could not be obtained in time by means of open or selective tendering.
For each contract awarded in accordance with paragraph 2, a procuring entity shall prepare a report in writing, or maintain a record, that includes the name of the procuring entity, the value and kind of good or service procured, and a statement that indicates the circumstances and conditions described in paragraph 2 that justified the use of limited tendering.
A Party may provide for its procuring entities to conduct negotiations in the context of covered procurement if:
the procuring entity has indicated its intent to conduct negotiations in the notice of intended procurement required under Article 11.7;
it appears from the evaluation that no tender is obviously the most advantageous in terms of the specific evaluation criteria set out in the notice of intended procurement or tender documentation;
there is a need to clarify the terms and conditions; or
all bids exceed the allocated prices provided for in the procuring entity’s budget.
A procuring entity shall:
ensure that any elimination of suppliers participating in negotiations is carried out in accordance with the evaluation criteria set out in the notice of intended procurement or tender documentation; and
when negotiations are concluded, provide a common deadline for the remaining participating suppliers to submit any new or revised tenders.
A procuring entity shall not prepare, adopt, or apply any technical specification or prescribe any conformity assessment procedure with the purpose or effect of creating an unnecessary obstacle to trade between the Parties.
In prescribing the technical specifications for the good or service being procured, a procuring entity shall, if appropriate:
set out the technical specifications in terms of performance and functional requirements, rather than design or descriptive characteristics; and
base the technical specifications on international standards, if these exist; otherwise, on national technical regulations, recognized national standards or building codes.
Where design or descriptive characteristics are used in the technical specifications, a procuring entity should indicate, where appropriate, that it will consider tenders of equivalent goods or services that demonstrably fulfil the requirements of the procurement by including words such as “or equivalent” in the tender documentation.
A procuring entity shall not prescribe technical specifications that require or refer to a particular trademark or trade name, patent, copyright, design, type, specific origin, producer, or supplier, unless there is no other sufficiently precise or intelligible way of describing the procurement requirements and provided that, in these cases, the procuring entity includes words such as “or equivalent” in the tender documentation.
A procuring entity shall not seek or accept, in a manner that would have the effect of precluding competition, advice that 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 the procurement.
For greater certainty, a procuring entity may conduct market research in developing specifications for a particular procurement.
For greater certainty, this Article is not intended to preclude a procuring entity from preparing, adopting, or applying technical specifications to promote the conservation of natural resources or the protection of the environment.
For greater certainty, this Chapter is not intended to preclude a Party, or its procuring entities, from preparing, adopting, or applying technical specifications required to protect sensitive government information, including specifications that may affect or limit the storage, hosting, or processing of such information outside the territory of the Party.
A procuring entity shall promptly make available or provide on request to any interested supplier tender documentation that includes all information necessary to permit the supplier to prepare and submit a responsive tender. Unless already provided in the notice of intended procurement, that tender documentation shall include a complete description of:
the procurement, including the nature, scope and, if known, the quantity of the good or service to be procured or, if the quantity is not known, the estimated quantity and any requirements to be fulfilled, including any technical specifications, conformity certification, plans, drawings, or instructional materials;
any conditions for participation, including any financial guarantees, information, and documents that suppliers are required to submit;
all criteria to be considered in the awarding of the contract and the relative importance of those criteria;
where there will be a public opening of tenders, the date, time, and place for the opening of tenders and, where appropriate, the persons authorized to be present;
where the procuring entity will conduct the procurement by electronic means, any authentication and encryption requirements or other requirements related to the submission of information by electronic means;
any other terms or conditions relevant to the evaluation of tenders;
any other terms or conditions, including terms of payment and any limitation on the means by which tenders may be submitted, e.g., paper or electronic means; and
any date for delivery of a good or supply of a service.
To the extent possible and subject to any applicable fees, an entity should make relevant tender documentation publicly available through electronic means or a computer-based telecommunications network openly accessible to all suppliers.
In establishing any date for the delivery of a good or the supply of a service being procured, a procuring entity shall take into account factors such as the complexity of the procurement.
A procuring entity shall promptly reply to any reasonable request for relevant information by an interested or participating supplier, provided that the information does not give that supplier an advantage over other suppliers.
Modifications
If, prior to the award of a contract, a procuring entity modifies the evaluation criteria or requirements set out in a notice of intended procurement or tender documentation provided to a participating supplier, or amends, or re-issues a notice or tender documentation, it shall publish or provide in writing those modifications, or the amended or re-issued notice or tender documentation:
to all suppliers that are participating in the procurement at the time of the modification, amendment, or re-issuance, if those suppliers are known to the procuring entity, and in all other cases, in the same manner as the original information was made available; and
in adequate time to allow those suppliers to modify and re-submit their initial tender, if appropriate.
General
A procuring entity shall, consistent with its own reasonable needs, provide sufficient time for a supplier to obtain the tender documentation and to prepare and submit a request for participation and a responsive tender, taking into account factors such as:
the nature and complexity of the procurement;
the extent of subcontracting anticipated; and
the time necessary for transmitting tenders by non-electronic means from foreign as well as domestic points if electronic means are not used.
Such time-periods, including any extension of the time-periods, shall be the same for all interested or participating suppliers.
Deadlines
A procuring entity that uses selective tendering shall establish that the final date for the submission of a request for participation shall not, in principle, be less than 25 days from the date of publication of the notice of intended procurement. If a state of urgency duly substantiated by the procuring entity renders this time period impracticable, the time period may be reduced to no less than 10 days.
Except as provided 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:
in the case of open tendering, the notice of intended procurement is published; or
in the case of selective tendering, the procuring entity notifies the suppliers that they will be invited to submit tenders, whether or not it uses a multi-use list.
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:
the notice of intended procurement is published by electronic means;
the tender documentation is made available by electronic means from the date of the publication of the notice of intended procurement; and
the procuring entity accepts tenders by electronic means.
A procuring entity may reduce the time period for tendering set out in paragraph 3 to no less than 10 days if:
the procuring entity has published a notice of planned procurement under Article 11.7 at least 40 days and no more than 12 months in advance of the publication of the notice of intended procurement, and the notice of planned procurement contains:
a description of the procurement;
the approximate final dates for the submission of tenders or requests for participation;
the address from which documents relating to the procurement may be obtained; and
as much of the information that is required for the notice of intended procurement as is available;
the procuring entity, for recurring contracts, indicates in an initial notice of intended procurement that subsequent notices will provide time-periods for tendering based on this paragraph;
a state of urgency duly substantiated by the procuring entity renders impracticable the time period for tendering set out in paragraph 3; or
the procuring entity procures commercial goods or services.
The use of paragraph 4, in conjunction with paragraph 5, shall in no case result in the reduction of the time periods for tendering set out in paragraph 3 to less than 10 days, from the date on which the notice of intended procurement is published.
A procuring entity shall require all interested or participating suppliers to submit requests for participation or tenders in accordance with a common deadline. These time periods, and any extension of these time periods, shall be the same for all interested or participating suppliers.
Treatment of Tenders
A procuring entity shall receive, open, and treat all tenders under procedures that guarantee the fairness and impartiality of the procurement process and the confidentiality of tenders.
If the tender of a supplier is received after the time specified for receiving tenders, the procuring entity shall not penalize that supplier if the delay is due solely to the mishandling on the part of the procuring entity.
If a procuring entity provides a supplier with an opportunity to correct unintentional errors of form between the opening of tenders and the awarding of the contract, the procuring entity shall provide the same opportunity to all participating suppliers.
Awarding of Contracts
To be considered for an award, a tender shall be submitted in writing and shall, at the time of opening, comply with the essential requirements set out in the notice and tender documentation and be submitted by a supplier who satisfies the conditions for participation.
Unless a procuring entity determines that it is not in the public interest to award a contract, it shall award the contract to the supplier that the procuring entity has determined to be fully capable of fulfilling the terms of the contract and that, based solely on the evaluation criteria specified in the notice and tender documentation has submitted:
the most advantageous tender; or
if price is the sole criterion, the lowest price.
If a procuring entity received a tender with a price that is abnormally lower than the prices in other tenders submitted, it may verify with the supplier that it satisfies the conditions for participation and is capable of fulfilling the terms of the contract.
A procuring entity shall not use options, cancel a covered procurement, or modify or terminate awarded contracts in order to avoid the obligations of this Chapter.
Information Provided to Suppliers
A procuring entity shall promptly inform suppliers that have submitted a tender of the contract award decision. The procuring entity may do so in writing or through the prompt publication of the notice, provided that the notice includes the date of award. If a supplier has requested the information in writing, the procuring entity shall provide it in writing.
Subject to Article 11.17, a procuring entity shall, on request, provide an unsuccessful supplier with an explanation of the reasons why the procuring entity did not select the unsuccessful supplier’s tender or an explanation of the relative advantages of the successful supplier’s tender.
Maintenance of Records
A procuring entity shall maintain the documentation, records and reports relating to tendering procedures and contract awards for covered procurement, including the records and reports provided for in Article: 11.10.3, for at least three years after the award of a contract.
Provision of Information to Parties
On request of the other Party, a Party shall provide promptly any information necessary to determine whether a procurement was conducted fairly, impartially and in accordance with this Chapter, including information on the characteristics and relative advantages of the successful tender. In cases where release of the information would prejudice competition in future tenders, the Party that receives the information shall not disclose it to any supplier, except after consulting with, and obtaining the agreement of, the Party that provided the information.
Non-Disclosure of Information
Notwithstanding any other provision of this Chapter, a Party, including its procuring entities, shall not, except to the extent required by law or with the written authorization of the supplier that provided the information, disclose information that would prejudice legitimate commercial interests of a particular supplier or that might prejudice fair competition between suppliers.
Nothing in this Chapter shall be construed to require a Party, including its procuring entities, authorities, and review bodies, to disclose confidential information if that disclosure:
would impede law enforcement;
might prejudice fair competition between suppliers;
would prejudice the legitimate commercial interests of particular persons, including the protection of intellectual property; or
would otherwise be contrary to the public interest.
Each Party shall ensure that criminal or administrative measures exist to address corruption in its government procurement. These measures may include procedures to render ineligible for participation in the Party’s procurements, either indefinitely or for a stated period of time, suppliers that the Party has determined to have engaged in fraudulent or other illegal actions
in relation to government procurement in the Party’s territory. Each Party shall also ensure that it has in place policies and procedures to eliminate to the extent possible or manage any potential conflict of interest on the part of those engaged in or having influence over a procurement.
Each Party shall maintain, establish, or designate at least one impartial administrative or judicial authority (hereinafter referred to as a “review authority”) that is independent of its procuring entities to review, in a non-discriminatory, timely, transparent, and effective manner, a challenge or complaint (hereinafter referred to as a “complaint”) by a supplier that there has been:
a breach of this Chapter; or
if the supplier does not have a right to directly challenge a breach of this Chapter under the law of a Party, a failure of a procuring entity to comply with the Party’s measures implementing this Chapter,
arising in the context of a covered procurement, in which the supplier has, or had, an interest. The procedural rules for these complaints shall be in writing and made generally available.
In the event of a complaint by a supplier, arising in the context of covered procurement in which the supplier has, or had, an interest, that there has been a breach or a failure as referred to in paragraph 1, the Party of the procuring entity conducting the procurement shall encourage, the procuring entity and the supplier to seek resolution of the complaint through consultations. The procuring entity shall accord impartial and timely consideration to the complaint in a manner that is not prejudicial to the supplier’s participation in ongoing or future procurement or to its right to seek corrective measures under the administrative or judicial review procedure. Each Party shall make information on its complaint mechanisms generally available.
If a body other than the review authority initially reviews a complaint, a Party shall ensure that the supplier may appeal the initial decision to the review authority that is independent of the procuring entity that is the subject of the complaint.
If the review authority has determined that there has been a breach or a failure as referred to in paragraph 1, a Party may limit compensation for the loss or damages suffered to either the costs reasonably incurred in the preparation of the tender or in bringing the complaint, or both.
Each Party shall ensure that, if the review authority is not a court, its review procedures are conducted in accordance with the following procedures:
a supplier shall be allowed sufficient time to prepare and submit a complaint in writing, which in no case shall be less than 10 days from the time when the basis of the complaint became known or reasonably should have become known to the supplier;
a procuring entity shall respond in writing to a supplier’s complaint and provide all relevant documents to the review authority;
a supplier that initiates a complaint shall be provided an opportunity to reply to the procuring entity’s response before the review authority takes a decision on the complaint; and
the review authority shall provide its decision on a supplier’s complaint in a timely manner, in writing, with an explanation of the basis for the decision.
Each Party shall adopt or maintain procedures that provide for:
prompt interim measures, pending the resolution of a complaint, to preserve the supplier’s opportunity to participate in the procurement and to ensure that the procuring entities of the Party comply with its measures implementing this Chapter; and
corrective action that may include compensation under paragraph 4.
The procedures may provide that overriding adverse consequences for the interests concerned, including the public interest, may be taken into account when deciding whether those measures should be applied. Just cause for not acting shall be provided in writing.
A Party shall notify any proposed modification or rectification (hereinafter referred to as a “modification”) to its Schedule in Annex 11-A (Government Procurement Schedules) by circulating a notice in writing to the other Party through the Joint Committee. A Party shall provide compensatory adjustments for a change in coverage if necessary to maintain a level of coverage comparable to the coverage that existed prior to the modification. The Party may include the offer of compensatory adjustment in its notice.
A Party is not required to provide compensatory adjustments to the other Party if the proposed modification concerns one of the following:
a procuring entity over which the Party has effectively eliminated its control or influence in respect of covered procurement by that procuring entity; or
rectifications of a purely formal nature and minor modifications to its Schedule in Annex 11-A (Government Procurement Schedules), such as:
changes in the name of a procuring entity;
the merger of one or more procuring entities listed in its Schedule;
the separation of a procuring entity listed in its Schedule into two or more procuring entities that are all added to the procuring entities listed in the same Section of the Annex; or
changes in website references;
and the other Party does not object under paragraph 3 on the basis that the proposed modification does not concern subparagraphs (a) or (b).
If a Party considers that its rights under this Chapter are affected by a proposed modification that is notified under paragraph 1, it shall notify the other Party of any objection to the proposed modification within 45 days of the date of circulation of the notice.
If a Party objects to a proposed modification, including a modification regarding a procuring entity on the basis that government control or influence over the entity’s covered procurement has been effectively eliminated, that Party may request additional information, including information on the nature of any government control or influence, with a view to clarifying and reaching agreement on the proposed modification, including the procuring entity’s continued coverage under this Chapter. The modifying Party and the objecting Party shall make every attempt to resolve the objection through consultations.
The Joint Committee shall modify Annex 11-A (Government Procurement Schedules) to reflect any agreed modification.
The Parties recognize the important contribution that small- and medium-sized enterprises (hereinafter referred to as the “SMEs”) can make to economic growth and employment and the importance of facilitating the participation of SMEs in government procurement.
If a Party maintains a measure that provides preferential treatment for SMEs, the Party shall ensure that the measure, including the criteria for eligibility, is transparent.
To facilitate participation by SMEs in covered procurement, each Party shall, to the extent possible and if appropriate:
provide comprehensive procurement-related information that includes a definition of SMEs in a single electronic portal;
endeavor to make all tender documentation available free of charge;
conduct procurement by electronic means or through other new information and communication technologies; and
consider the size, design, and structure of the procurement, including the use of subcontracting by SMEs.
This Chapter shall not entail any financial obligations to the Parties.
Each Party is responsible for any financial expenses to fulfill their role in this Chapter.
To improve market access to each Party’s procurement market, each Party shall, where possible, use English in its publication of materials or information pursuant to Article 11.7, including in the publications listed in Section H of each Party’s Schedule in Annex 11-A (Government Procurement Schedules).
Chapter TWELVE. COOPERATION ON INVESTMENT FACILITATION
Article 12.1. Objectives
The Parties affirm their desire to promote an attractive investment climate. Consistent with Article 2.1 of the Agreement Between the Government of the United Arab Emirates and the Government of the Republic of Korea for the Promotion and Protection of Investments, done at Abu Dhabi, on 9 June 2002, and any subsequent amendments thereto, the Parties shall take appropriate measures to encourage and facilitate investment and to secure favorable conditions for the long-term economic development of the Parties.
Article 12.2. Cooperation Activities
The Parties shall cooperate in promoting and facilitating investment activities. Cooperation on investment facilitation between the Parties may include the following:
(a) to promote and enhance the economic cooperation on investment facilitation between the Parties;
(b) to monitor investment relations, to identify opportunities for expanding investment, and to identify issues relevant to investment that may be appropriate for negotiation in an appropriate forum;
(c) to hold consultations on specific investment matters of interest to the Parties;
(d) to work toward the enhancement of investment flows;
(e) to identify and work toward the removal of impediments to investment flows; or
(f) to seek the views of the private sector, where appropriate, on matters related to the work of the Committee on Investment Facilitation.