(i) the right to be heard before the review body rules on the challenge;
(ii) the right to be represented and assisted;
(iii) access to the challenge procedure; and
(iv) the right to request that the proceedings be made public and that witnesses may appear;
(c) the decision or recommendation related to the challenges shall be communicated in a timely manner and in writing, and shall include an explanation of the basis for each decision or recommendation; and
(d) each supplier shall be given sufficient time to prepare and submit a challenge, which in no case shall be less than ten days from the date on which the supplier became aware, or reasonably should have become aware, of the reason for the challenge.
4. Each Party shall provide that the authority it establishes or designates pursuant to paragraph 2 shall have the authority to take interim measures to enable the supplier to participate in the procurement concerned. Such interim measures may have the effect of suspending the procurement proceedings. The procedures relating to the institution of interim measures may provide that, when deciding on their application, adverse consequences for the interests at stake, including the public interest, may be taken into account.
5. Each Party shall ensure that the filing of a challenge by a supplier does not affect its participation in ongoing or future procurement.
6. Each Party shall adopt or maintain procedures that establish:
(a) rapid interim measures to preserve the supplier's ability to participate in the procurement. Such interim measures may take the following forms effect the suspension of the procurement proceedings. 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. Good cause shall be stated in writing for not taking such measures; and
(b) where the review body has found non-compliance with paragraph 1, it may provide for corrective measures or compensation for loss or damage suffered, which may be limited to the costs of preparing the tender or the costs related to the challenge, or both.
7. Where a body other than an authority referred to in paragraph 2 initially reviews a challenge, the Party shall ensure that the supplier may appeal the initial decision to an impartial administrative or judicial authority that is independent of the procuring entity whose procurement is the subject of the challenge. Where the review body is not a court, the decision of the review body shall be subject to judicial review or its proceedings shall be subject to a procedure that ensures that the conditions set out in subparagraphs 3(a), (b) and (c) are met.
Article 12.13. MODIFICATIONS AND AMENDMENTS TO COVERAGE
1. When a Party modifies its procurement coverage, the Party:
(a) notify the other Party in writing; and
(b) shall include in its notification a proposal for compensatory adjustments for the other Party adequate to maintain an acceptable and comparable level of coverage to the level existing prior to the modification.
2. Notwithstanding subparagraph 1(b), a Party need not make compensatory adjustments where:
(a) the modification in question is minor or a purely formal rectification; or
(b) the proposed amendment covers an entity over which the Party has lost control or influence.
3. If the other Party does not agree that:
(a) the compensatory adjustments proposed pursuant to subparagraph 1(b) are adequate to maintain a level of coverage comparable to that mutually agreed;
(b) the proposed modification is a minor amendment or correction of the type referred to in subparagraph 2(a); or
(c) the proposed amendment is directed at an entity over which the Party has effectively eliminated its control or influence in accordance with subparagraph 2(b);
the Party shall express its objection in writing within 30 days after receipt of the notice referred to in paragraph 1, failing which the Party shall be deemed to have agreed to the proposed adjustment or modification, including for the purposes of Chapter 21 (Dispute Settlement).
Article 12.14. PARTICIPATION OF MICRO, SMALL AND MEDIUM-SIZED COMPANIES
1. The Parties recognize the importance of the participation of Micro, Small and Medium Enterprises (hereinafter referred to as MSMEs) in public procurement.
2. The Parties also recognize the importance of business alliances between suppliers of each Party, and in particular MSMEs, including joint participation in procurement procedures.
3. The Parties agree to exchange information and work together to facilitate MSMEs' access to public procurement procedures, methods and contractual requirements, focusing on their special needs.
Article 12.15. 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 experience 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 the provisions of this Chapter, including the training of public officials.
Article 12.16. 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 such negotiations the Parties agree to modify the Annexes to this Chapter, the result shall be submitted to the Government Procurement Committee for implementation.
Article 12.17. PUBLIC CONTRACTING COMMITTEE
1. A Government Procurement Committee composed of representatives of each Party is established.
2. The functions of the Committee shall be:
(a) evaluate the implementation of this Chapter, including its use and recommend to the Parties the corresponding activities;
(b) evaluate and follow up on the cooperation activities submitted by the Parties;
(c) follow up and support the Parties in conducting additional negotiations in accordance with Article 12.16; and
(d) Submit to the Free Trade Commission the modification of the Annexes to this Chapter, so that they reflect any agreement reached under the procedures set forth in Articles 12.13 and 12.16.
3. The Committee shall meet at the request of a Party, at such time and place as may be agreed upon, and shall keep a written record of its meetings.
Article 12.18. INFORMATION TECHNOLOGY
1. To the extent possible, the Parties shall endeavor to use electronic means of communication in order to permit the efficient dissemination of information on government procurement, particularly with respect to procurement opportunities offered by procuring entities, while respecting the principles of transparency and non-discrimination.
Use of electronic media
2. When covered procurements are carried out through electronic means, the procuring entity:
(a) ensure that procurement is conducted using information technology systems and software, including those related to authentication and cryptographic encryption of information, that are generally accessible and compatible with generally accessible information technology systems and software; and
(b) maintain mechanisms to ensure the integrity of requests for participation and bids, including the determination of the time of receipt and the prevention of inappropriate access.
Article 12.19. ELECTRONIC AUCTIONS
Where a procuring entity intends to conduct a covered procurement using an electronic auction, it shall provide to each participant prior to the commencement of such auction:
(a) the automatic evaluation method, including the mathematical formula, which is based on the evaluation criteria established in the bidding documents and which will be used in the automatic ranking or reclassification during the auction;
(b) the results of the initial evaluations of the elements of its bid, if the contract is to be awarded on the basis of the most advantageous bid; and
(c) any other relevant information on the conduct of the auction.
Article 12.20. DEFINITIONS
For the purposes of this Chapter:
notice of intended procurement means the notice published by a procuring entity inviting interested suppliers to submit a request for participation or a bid;
commercial good or service means a good or service that is generally sold or offered for sale in the commercial marketplace and is customarily acquired by nongovernmental purchasers for nongovernmental purposes;
compensation means any condition or commitment that promotes local development or improves a Party's balance of payments accounts, such as the use of domestic content, licensing of technology exploitation, investment, compensatory trade or other similar measures or requirements;
conditions for participation means: registration, qualification or other prerequisites for participation in a public procurement;
direct procurement means: the method of procurement whereby the procuring entity approaches the supplier(s) of its choice;
procurement means: the process by which a government acquires or uses a good or service for
governmental purposes and not with a view to commercial sale or resale, or with a view to use in the production or supply of a good or service for commercial sale or resale;
public works concession contract means: any contractual agreement whose principal purpose is to provide for the construction or rehabilitation of physical infrastructure, plants, buildings, facilities or other government-owned works, under which, in consideration of the performance of a contract by a supplier, a contracting entity grants to the supplier, for a specified period, temporary ownership or the right to control, operate and require payment for the use of such works during the term of the contract.
contracting entity means the entity included in Sections A through C of each Party's Schedule contained in Annex 12-A;
technical specification means the bidding requirement that:
(a) establishes the characteristics of a good or service to be supplied, including quality, performance, safety and dimensions or processes and methods for its production or supply; or
(b) indicates terminology, symbols, packaging, marking or labeling requirements applicable to a good or service.
public bidding means: the method of procurement under which all interested suppliers may submit a bid;
selective tendering means: the method of procurement whereby the procuring entity invites only those suppliers that are qualified to submit bids;
multiple-use list means: a list of suppliers that the procuring entity has determined to be eligible for the list, and that the procuring entity intends to use more than once;
written or written means: any expression in words or figures that can be read, reproduced and subsequently communicated, and may include information transmitted and stored by electronic means;
supplier means a person who supplies or could supply a good or service to a procuring entity; service includes construction service, unless otherwise provided; and
construction service means the 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 the United Nations Central Product Classification (CPC).
Chapter 13. COMPETITION POLICY, DESIGNATED MONOPOLIES AND STATE-OWNED ENTERPRISES
Article 13.1. OBJECTIVES
The Parties recognize the importance of free competition in their commercial relations and consider it necessary to maintain or adopt measures to proscribe anti-competitive business conduct and to cooperate in matters related to this Chapter, in order to help ensure the benefits derived from this Agreement.
Article 13.2. COMPETITION LAW AND POLICY
1. Each Party shall maintain competition laws and shall enjoy independence and autonomy to develop and implement its policy and such competition laws.
2. Each Party shall adopt or maintain measures that proscribe anti-competitive business conduct and shall have authorities responsible for their enforcement.
3. Each Party shall ensure that measures it adopts or maintains to proscribe anticompetitive business conduct and that enforcement actions taken pursuant to such measures are consistent with the principles of transparency, non-discrimination and due process.
4. Each Party shall make available to the other Party, and maintain publicly accessible, information relating to exclusions or exceptions under its competition laws.
Article 13.3. COOPERATION
1. Each Party recognizes the importance of cooperation and coordination between its competition authorities to promote the effective enforcement of competition laws in their respective territories.
2. The Parties shall cooperate on matters relating to the application of their competition policies and laws.
3. The Parties, through their competition authorities, shall coordinate through bilateral cooperation instruments, activities such as notification, consultations, positive and negative comity, technical assistance and exchange of information.
Article 13.4. CONSULTATIONS (1)
1, To further mutual understanding between the Parties or to address specific matters arising under this Chapter, and without prejudice to their independence and autonomy to develop, maintain and enforce their competition laws and policies, a Party shall, at the request of the other Party, consult on matters referred to it.
2. The Party requesting the consultation shall indicate the reasons for the consultation. Where trade or investment between the Parties is affected, the requesting Party shall indicate in its request how it was affected.
3. The other Party should give full and due consideration to the concerns of the requesting Party.
Article 13.5. NOTIFICATIONS
1. Each Party shall notify the other Party, through its competition authorities, of competition law enforcement activities that may affect important interests of the other Party.
2. Notifications shall be sufficiently detailed to enable the notified Party to make an initial assessment of the effect of the enforcement activity within its territory.
3. Provided that it is not contrary to the competition laws of the Parties and does not affect any ongoing investigation, the notification shall take place at an early stage of the proceeding or investigation of the case.
Article 13.6. EXCHANGE OF INFORMATION
1. The competition authority of a Party shall, upon request of the competition authority of the other Party, use its best efforts to provide information to facilitate the enforcement activities of its respective competition law, provided that it does not affect any ongoing investigation.
2. Any exchange of information shall be subject to the rules and standards of confidentiality applied in the territory of each Party.
3. Each Party shall maintain the confidentiality of any information provided to it, subject to any limitations imposed by the Party providing the information on the use of such information.
Article 13.7. DESIGNATED MONOPOLIES AND STATE ENTERPRISES
This Agreement shall not prevent a Party from designating or maintaining a monopoly or State enterprises, provided that its legislation so permits.
Article 13.8. EXCLUSION FROM THE DISPUTE SETTLEMENT MECHANISM
This Chapter is expressly excluded from the coverage of Chapter 21 (Dispute Settlement).
Article 13.9. DEFINITIONS
For the purposes of this Chapter:
Competition Authority is:
(a) for the Republic of Colombia: the Superintendency of Industry and Commerce (SIC) and, for specific matters, the Financial Superintendency of Colombia and the Administrative Department of Civil Aeronautics; and
(b) for the Republic of Panama: the Authority for Consumer Protection and Defense of Competition (ACODECO);
or their successors;
anti-competitive conduct means any unilateral act or agreement that, under the competition laws of a Party, has adverse effects on competition in the territory of that Party, including the following:
(a) acts, concerted practices or agreements between undertakings and decisions of associations of undertakings that have as their object or effect the prevention, restriction or distortion of competition;
(b) any abuse of dominance or substantial power by one or more companies; and
(c) mergers or any other integration of companies that may significantly impede effective competition;
State enterprise means an enterprise owned or controlled by a Party through ownership rights;
competition law is:
(a) for the Republic of Colombia, Law 155 of 1959, Law 1340 of 2009, and Decree 2153 of 1992 and its regulations, as well as any amendment made to the aforementioned legal instruments; and
(b) for the Republic of Panama, Law No. 45 of October 31, 2007 and Executive Decree No. 8-A of January 22, 2009, as well as any amendment made to the aforementioned legal instruments; and
designated monopolist means an entity, including a consortium or government agency, that in any relevant market in the territory of a Party is designated as the sole supplier or purchaser of a good or service, but does not include an entity that has been granted an exclusive intellectual property right derived solely from such a grant.
Chapter 14. Investment
Section A. INVESTMENT
Article 14.1. SCOPE (1)
1. This Chapter applies to measures adopted or maintained by a Party relating to:
(a) an investor of the other Party;
(b) a covered investment; and
(c) with respect to Articles 14.6, 14.14 and 14.15, an investment in its territory.
2. This Chapter does not apply to disputes which arose prior to the entry into force of this Agreement or to disputes arising out of an act or fact which took place or a situation which ceased to exist before the entry into force of this Agreement, even if their effects continue after the entry into force of this Agreement.
3. Nothing in this Chapter shall be construed to impose an obligation on a Party to privatize any investment owned or controlled by it or to prohibit a Party from designating a monopoly, provided that, if a Party adopts or maintains a measure to privatize such an investment or a measure to designate a monopoly, this Chapter shall apply to such measure.
Article 14.2. RELATIONSHIP WITH OTHER CHAPTERS
1. In case of incompatibility between this Chapter and another Chapter, the other Chapter shall prevail.
2. A Party's requirement that a service supplier of the other Party post a bond or other form of financial security as a condition for supplying a service in its territory does not, of itself, make this Chapter applicable to the supply of that cross-border service. This Chapter shall apply to that Party's treatment of the bond or financial security provided if the bond or financial security is a covered investment.
3. This Chapter shall not apply to a measure adopted or maintained by a Party if such measure is covered by Chapter 16 (Financial Services).
4. Articles 15.4 (Market Access) and 15.7 (Domestic Regulation) are incorporated into and made part of this Chapter, and apply to a measure adopted or maintained by a Party if that measure affects the supply of a service in its territory by a covered investment.
5. A reservation made by a Party under Article 15.6 (Non-Conforming Measures) with respect to Article 15.4 (Market Access) shall apply to a measure of that Party covered in paragraph 4.
Article 14.3. NATIONAL TREATMENT
1. Each Party shall accord to an investor of the other Party treatment no less favorable than that it accords, in like circumstances, to its own investors with respect to the establishment, acquisition, expansion, management, conduct, operation and sale or other disposition of an investment in its territory.
2. Each Party shall accord to a covered investment treatment no less favorable than that it accords, in like circumstances, to investments of its own investors with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of an investment in its territory.
Article 14.4. MOST-FAVORED-NATION TREATMENT
1. Each Party shall accord to an investor of the other Party treatment no less favorable than that it accords, in like circumstances, to investors of a non-Party with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of an investment in its territory.
2. Each Party shall accord to a covered investment treatment no less favorable than that it accords, in like circumstances, to investments of investors of a non-Party with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of an investment in its territory.
3. For greater certainty, the treatment "with respect to the establishment, acquisition, expansion, management, conduct, operation and sale or other disposition of investments" referred to in paragraphs 1 and 2 does not include dispute settlement mechanisms such as those in this Chapter, which are provided for in international trade treaties or agreements.
Article 14.5. MINIMUM STANDARD OF TREATMENT (2)
1. Each Party shall accord to a covered investment treatment in accordance with customary international law, including fair and equitable treatment and full protection and security.
2. For greater certainty, paragraph 1 prescribes that the customary international law minimum standard of treatment of aliens is the minimum standard of treatment to be accorded to covered investments. The concepts of "fair and equitable treatment" and "full protection and security" do not require treatment in addition to or beyond that required by the minimum standard of treatment of foreigners under customary international law and do not create additional substantive rights.
3. The obligation in paragraph 1 to provide "fair and equitable treatment" includes the obligation not to deny justice in criminal, civil or administrative litigation proceedings, in accordance with the principle of due process embodied in the world's principal legal systems; and the obligation to provide "full protection and security" requires each Party to provide the level of police protection that is required by customary international law.
4. A determination that another provision of this Agreement, or of another international agreement, has been violated does not establish that this Article has been violated.
5. For greater certainty, "fair and equitable treatment" shall not be interpreted as preventing a Party from exercising its regulatory power.