The Parties agree to examine carefully any application for initiation of an anti-dumping investigation on an originating good from the other Party and on which anti-dumping measures have been terminated in the previous 12 months as a result of a review.
Article 7.14. DISPUTE SETTLEMENT
Neither Party shall have recourse to Chapter 22 (Dispute Settlement) for any matter arising under this Section.
Section C. Definitions
Article 7.15. DEFINITIONS
For the purposes of this Chapter:
bilateral safeguard measure means a measure described in Article 7.1;
competent authority means:
(a) for Korea, the Korea Trade Commission or, the Ministry of Strategy and Finance;
(b) for Costa Rica, the Trade Remedies Directorate (Dirección de Defensa Comercial) of the Ministry on Economy, Industry and Commerce (Ministerio de Economía, Industria y Comercio);
(c) for El Salvador, the Trade Agreements Administration Bureau (Dirección de Administración de Tratados Comerciales) of the Ministry of Economy (Ministerio de Economía);
(d) for Honduras, the Directorate General of Administration and Negotiation of Agreements (Dirección General de Administración y Negociación de Tratados) of the Secretary of State in the Office of Economic Development (Secretaría de Estado en el Despacho de Desarrollo Económico);
(e) for Nicaragua, the Directorate of Application and Negotiation of Trade Agreements (Dirección de Aplicación y Negociación de Acuerdos Comerciales) of the Ministry of Development, Industry and Commerce (Ministerio de Fomento, Industria y Comercio); and
(f) for Panama, the National Directorate for International Trade Agreement Administration and Commercial Defense (Dirección Nacional de Administración de Tratados Comerciales Internacionales y Defensa Comercial) of the Ministry of Commerce and Industries (Ministerio de Comercio e Industrias), or their successors;
domestic industry means, with respect to an imported good, the producers as a whole of the like or directly competitive good operating in the territory of a Party, or those whose collective output of the like or directly good constitutes a major proportion of the total domestic production of that good;
global safeguard measure means a measure applied under Article XIX of GATT 1994 and the Safeguards Agreement;
serious injury means a significant overall impairment in the position of a domestic industry;
substantial cause means a cause that is important and not less than any other cause;
threat of serious injury means serious injury that, on the basis of facts and not merely on allegation, conjecture, or remote possibility, is clearly imminent; and
transition period means the 10-year period following the date of entry into force of this Agreement, except that for any good for which the Schedule to Annex 2-B (Elimination of Customs Duties) of the Party applying the safeguard measure, provides for the elimination of its tariffs on the good over a period of 10 or more years, transition period means the tariff elimination period for the good set out in that schedule plus three years.
Chapter 8. GOVERNMENT PROCUREMENT
Article 8.1. GENERAL PROVISIONS
1. The Parties recognize that this Chapter will contribute to expand bilateral trading opportunities in each Party’s government procurement market.
2. The Parties recognize their shared interest in promoting the effective, reciprocal and progressive opening of government procurement markets. The Parties will endeavor to cooperate bilaterally on procurement matters.
Article 8.2. SCOPE
1. This Chapter shall apply to any measure of a Party regarding covered procurement.
2. For the purposes of this Chapter, covered procurement means a government procurement of goods, services or any combination thereof for governmental purposes:
(a) not procured with a view to commercial sale or resale, or for use in the production or supply of goods or services for commercial sale or resale;
(b) by any contractual means, including purchase, lease, and rental or hire purchase, with or without an option to buy;
(c) for which the value, as estimated in accordance with paragraphs 5 and 6 equals or exceeds the relevant threshold specified by each Party in Annex 8-A at the time of publication of a notice in accordance with Article 8.6;
(d) by a procuring entity; and
(e) that is not otherwise excluded from coverage by this Chapter; and subject to the conditions specified in Annex 8-A.
3. This Chapter shall not apply to:
(a) the acquisition or rental of land, existing buildings, or other immovable property or rights thereon;
(b) non-contractual agreements or any form of assistance (1) that a Party provides, including cooperative agreements, grants, loans, equity infusions, guarantees, fiscal incentives, subsidies, government provision of goods and services to state, regional, or local government entities;
(c) the procurement or acquisition of fiscal agency or depository services, liquidation and management services for regulated financial institutions, or services related to the public debt, including loans and government bonds, notes and other securities;
(d) public employment contracts and related measures;
(e) procurement conducted:
(i) under the particular procedure or condition of an international agreement relating to the stationing of troops or relating to the joint implementation by the signatory countries of a project; or
(ii) under the particular procedure or condition of an international organization, or funded by international grants, loans, or other assistance where the applicable procedure or condition would be inconsistent with this Chapter; and
(f) procurement for the specific purpose of providing international assistance, including development aid.
4. Where legislation of a Party allows a covered procurement to be carried out on behalf of the procuring entity by other entities or persons not listed in the Annex 8-A, the provisions of the Article 8. 4 shall equally apply, mutatis mutandis.
Valuation of Contracts
5. In estimating the value of a procurement for the purposes of ascertaining whether it is a covered procurement, a procuring entity shall:
(a) neither divide a procurement into separate procurements nor use a particular valuation method for estimating the value of a procurement with the intention of totally or partially excluding it from the application of this Chapter;
(b) include the estimated maximum total value of the procurement over its entire duration, whether awarded to one or more suppliers, taking into account all forms of remuneration, including:
(i) premiums, fees, commissions, and interest; and
(ii) where the procurement provides for the possibility of option clauses, the estimated maximum total value of the procurement, inclusive of optional purchases; and
(c) where the procurement is to be conducted in multiple parts, with contracts to be awarded at the same time or over a given period to one or more suppliers, base its calculation of the total maximum value of the procurement over its entire duration.
6. Where the estimated maximum total value of a procurement over its entire duration is not known, the procurement shall be covered by this Chapter.
Article 8.3. EXCEPTIONS
1. Subject to the requirement that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between the Parties where the same conditions prevail or a disguised restriction on trade between the Parties, nothing in this Chapter shall be construed to prevent a Party from adopting or maintaining measures:
(a) necessary to protect public morals, order or safety;
(b) necessary to protect human, animal, or plant life or health;
(c) necessary to protect intellectual property; or
(d) relating to goods or services of persons with disabilities, philanthropic institutions, or prison labor.
2. The Parties understand that paragraph 1(b) includes environmental measures necessary to protect human, animal, or plant life or health.
Article 8.4. GENERAL PRINCIPLES
National Treatment and Non-Discrimination
1. With respect to any measure covered by this Chapter, each Party, including its procuring entities, shall accord to the goods and services of the other Party and to the suppliers of the other Party offering such goods or services, treatment no less favourable than that accorded to domestic goods, services and suppliers.
2. With respect to any measure regarding covered procurement, a Party, including its procuring entities, shall not:
(a) treat a locally established supplier less favorably than another locally established supplier on the basis of degree of foreign affiliation or ownership; or
(b) discriminate against a locally established supplier on the basis that the goods or services offered by that supplier for a particular procurement are goods or services of the other Party.
Measures Not Specific to Procurement
3. The provisions of paragraphs 1 and 2 shall not apply to customs duties and charges of any kind imposed on, or in connection with, importation, the method of levying such duties and charges, other import regulations or formalities, and measures affecting trade in services other than measures governing covered procurement.
Use of Electronic Means
4. When conducting covered procurement by electronic means, a procuring entity shall:
(a) ensure that the procurement is conducted using information technology systems and software, including those related to authentication and encryption of information, that are generally available and interoperable with other generally available information technology systems and software; and
(b) maintain mechanisms that ensure the integrity of requests for participation and tenders, including establishment of the time of receipt and the prevention of inappropriate access.
Prohibition of Offsets
5. Subject to the exceptions contained in this Chapter or the annexes pertaining thereto, a Party, including its procuring entities, shall not seek, take account of, impose, or enforce offsets at any stage of a covered procurement.
Rules of Origin
6. For the purposes of covered procurement, each Party shall not apply rules of origin to goods or services imported from or supplied from the other Party that are different from the rules of origin the Party applies at the same time in the normal course of trade to imports or supplies of the same goods or services.
Conduct of Procurement
7. A procuring entity shall conduct covered procurement in a transparent and impartial manner that:
(a) is consistent with this Chapter, using methods such as open tendering, selective tendering and limited tendering;
(b) avoids conflicts of interest; and
(c) prevents corrupt practices.
Article 8.5. PUBLICATION OF PROCUREMENT INFORMATION AND MEASURES
Each Party shall promptly publish its procurement laws, regulations, procedures, administrative rulings of general application relating to covered procurements, and any changes or additions to this information, in electronic or paper media that are widely disseminated and remain accessible to the public, and provide, if so requested by the other Party further information concerning their application.
Article 8.6. NOTICES
Notice of Intended Procurement
1. For each covered procurement, except in the circumstances described in Article 8.11, a procuring entity shall publish a notice inviting interested suppliers to submit tenders or, where appropriate, applications for participation in the procurement. Any such notice shall be published in an electronic or paper medium that is widely disseminated and readily accessible to the public free of charge for the entire period established for tendering. Each Party shall encourage procuring entities to publish notices of intended procurement in a single point of entry electronic publication that is accessible through the Internet or a comparable network.
2. Except as otherwise provided in this Chapter, each notice of intended procurement shall include:
(a) the name and address of the procuring entity and other information necessary to contact such entity and obtain all relevant documents relating to the procurement, and their cost and terms of payment, if any;
(b) a description of the procurement, including the nature and the quantity of the goods or services to be procured or, where the quantity is not known, the estimated quantity;
(c) the procurement method that will be used and whether it will involve negotiation or electronic auction;
(d) where applicable, the address and any final date for the submission of requests for participation in the procurement; and
(e) the address and the final date for the submission of tenders.
3. The following information shall be made available through electronic means:
(a) for recurring contracts, if possible, an estimate of the timing of subsequent notices of intended procurement;
(b) a description of any options;
(c) the time-frame for delivery of goods or services or the duration of the contract;
(d) a list and brief description of any conditions for participation of suppliers, including any requirements for specific documents or certifications to be provided by suppliers in connection therewith, unless such requirements are included in tender documentation that is made available to all interested suppliers at the same time as the notice of intended procurement;
(e) where, pursuant to Article 8.8, a procuring entity intends to select a limited number of qualified suppliers to be invited to tender, the criteria that will be used to select them and, where applicable, any limitation on the number of suppliers that will be permitted to tender; and
(f) an indication that the procurement is covered by this Chapter.
Notice of Planned Procurement
4. Each Party shall encourage its procuring entities to publish as early as possible in each Party’s fiscal year, a notice regarding their procurement plans for that fiscal year. The notice should, at a minimum, include the subject-matter of the procurement and the planned date of the publication of the notice of the intended procurement according to the legislation of each Party.
Article 8.7. CONDITIONS FOR PARTICIPATION
1. A procuring entity shall limit any conditions for participation in a procurement to those that are essential to ensure that a supplier has the legal, commercial, technical and financial capacities to undertake the relevant procurement.
2. In assessing whether a supplier satisfies the conditions for participation, a procuring entity:
(a) shall evaluate the financial, commercial and technical abilities of a supplier on the basis of that supplier’s business activities both inside and outside the territory of the Party of the procuring entity;
(b) shall base its evaluation solely on the conditions that a procuring entity has specified in advance in notices or tender documentation;
(c) shall not impose the condition that, in order for a supplier to participate in a procurement or be awarded a contract, the supplier has previously been awarded one or more contracts by a procuring entity of that Party or that the supplier has prior work experience in the territory of that Party; and
(d) may require prior experience where essential to meet the requirements of the procurement.
3. Where there is supporting evidence, a Party, including its procuring entities, may exclude a supplier on grounds such as:
(a) bankruptcy;
(b) false declarations;
(c) significant or persistent deficiencies in performance of any substantive requirement or obligation under a prior contract or contracts;
(d) final judgments in respect of serious crimes or other serious offences;
(e) professional misconduct, acts or omissions that adversely reflect on the commercial integrity of the supplier; or
(f) failure to pay taxes.
Article 8.8. REGISTRATION AND QUALIFICATION OF SUPPLIERS
Registration Systems and Qualification Procedures
1. Where a Party, including its procuring entities, requires suppliers to register or pre-qualify before being permitted to participate in a covered procurement, that Party, including its procuring entities, shall ensure that a notice inviting suppliers to apply for registration or pre-qualification is published in adequate time to enable interested suppliers to initiate and, to the extent that it is compatible with the efficient operation of the procurement process, complete the registration and/or qualification procedures.
Selective Tendering
2. Where a Party’s law allows the use of selective tendering procedures, a procuring entity shall, for each intended procurement:
(a) publish a notice inviting suppliers to apply for participation in the procurement sufficiently in advance to provide interested suppliers time to prepare and submit applications and for the entity to evaluate, and make its determinations based on such applications; and
(b) allow all domestic suppliers and suppliers of the other Party that the entity has determined satisfy the conditions for participation to submit a tender, unless the entity has stated in the notice of intended procurement or, where publicly available, in the tender documentation, a limitation on the number of suppliers that will be permitted to tender and the criteria for such a limitation.
Lists of Suppliers
3. A procuring entity may establish a list of suppliers, provided that the entity annually publishes or otherwise makes available continuously in electronic form a notice inviting interested suppliers to apply for inclusion on the list. A notice inviting suppliers to apply for inclusion in a list of suppliers, shall include the name and address of that competent or procuring entity and other information necessary to contact the entity and obtain all relevant information and document relating to inclusion in the list. Entities shall make available:
(a) a description of the goods and services, or categories thereof, for which the list may be used;
(b) the conditions for participation to be satisfied by suppliers and the methods that the procuring entity will use to verify a supplier’s satisfaction of those conditions; and
(c) the period of validity of the list and the means for its renewal or termination, or where the period of validity is not provided, an indication of the method by which notice will be given of the termination of use of the list.
4. A procuring entity shall allow suppliers to apply at any time for inclusion on a list of suppliers and shall include on the list all qualified suppliers within a reasonably short time.
5. Where a supplier that is not included on a list of suppliers submits a request for participation in a procurement based on a list of suppliers and all required documents relating thereto, within the time-period provided for in Article 8.9, a procuring entity shall examine the request if it is determined to be a qualifying supplier, provided there is sufficient time to fulfill the conditions for participation, unless, in exceptional cases, due to the complexity of the procurement, that entity is not able to complete the examination of the request within the time-period allowed for the submission of tenders.
Article 8.9. TIME PERIODS
1. A procuring entity shall provide suppliers sufficient time to submit applications to participate in a covered procurement, and prepare and submit responsive tenders, taking into account the nature and complexity of the procurement.
2. If a procuring entity that uses selective tendering establishes a final date for the submission of requests for participation, it shall set a reasonable deadline allowing sufficient time for interested suppliers to fulfil the formal requirements for participation in the tender. Under no circumstance shall this time-period be less than 10 days.
3. Except as provided for 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:
(a) in the case of open tendering, the notice of intended procurement is published; or
(b) in the case of selective tendering, the entity notifies suppliers that they will be invited to submit tenders whether or not it uses a list of suppliers.
4. A procuring entity may reduce the time-period for tendering set out in paragraph 3 to not less than 10 days where:
(a) the procuring entity has published a notice in an electronic medium listed in Annex 8-C, containing the information specified in Article 8.6.4 at least 40 days and not more than 12 months in advance;
(b) in the case of the second or subsequent publication of notices for procurement of a recurring nature;
(c) a state of urgency duly substantiated by the procuring entity renders such time-period impracticable; or
(d) a procuring entity procures commercial goods and services that are sold or offered for sale to, and customarily purchased and used by, nongovernmental buyers for non-governmental purposes.
5. 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:
(a) the notice of intended procurement is published by electronic means;
(b) all the tender documentation is made available by electronic means from the date of the publication of the notice of intended procurement; and
(c) the tenders may be received by electronic means by the procuring entity.
6. The use of paragraph 5, in conjunction with paragraph 4, shall in no case result in the reduction of the time-period for tendering set out in paragraph 3 to less than 10 days from the date on which the notice of intended procurement is published.
Article 8.10. INFORMATION ON INTENDED PROCUREMENTS
Tender Documentation
1. A procuring entity shall promptly provide to any supplier interested in participating in a procurement tender documentation that includes all information necessary to permit suppliers to prepare and submit responsive tenders.
2. Unless already provided in the notice of intended procurement, such documentation shall include a complete description of:
(a) the procurement, including the nature and the quantity of the goods or services to be procured or, where the quantity is not known, the estimated quantity and any requirements to be fulfilled, including any technical specifications, conformity assessment certification, plans, drawings or instructional materials;
(b) any conditions for participation of suppliers, including any financial guarantees, information, and documents that suppliers are required to submit;
(c) all evaluation criteria to be considered in the awarding of the contract, and, except where price is the sole criterion, the relative importance of such criteria;