5. Each Party shall take policy, legal and administrative measures in order to ensure full compliance with the conditions for access to biological and genetic resources of biodiversity and associated traditional knowledge.
6. Any intellectual property rights generated from the use of biological and genetic resources and their derivative products, and/or traditional knowledge of indigenous and local communities, of which a Party is the country of origin, shall observe compliance with the specific national and international standards on the matter.
7. In accordance with their legislation, the Parties shall require that patent applications developed from biological and genetic resources and/or associated traditional knowledge, of which they are the country of origin, demonstrate legal access to such resources or knowledge, as well as the disclosure of the origin of the accessed resource and/or traditional knowledge.
8. The Parties may, through their competent national authorities, exchange information related to biodiversity and/or traditional knowledge and documented information related to biological and genetic resources and their derivatives, or if applicable, of the traditional knowledge of their indigenous and local communities, in order to support the evaluation of patents.
9. The Parties agree, at the request of any of them, to collaborate in the provision of public information at their disposal for the investigation and follow-up of illegal access to genetic resources and/or traditional knowledge, innovations and practices in their territories.
10. The Parties shall cooperate, on mutually agreed terms, with the exchange of information and experiences regarding access to biological and genetic resources and their derivatives, and/or associated traditional knowledge.
Article 9.6. COPYRIGHT AND RELATED RIGHTS
1. The Parties shall recognize existing rights and obligations under the Berne Convention for the Protection of Literary and Artistic Works; the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations; the WIPO Copyright Treaty; and the WIPO Performances and Phonograms Treaty. (4)
2. In accordance with the international conventions referred to in paragraph 1 and with its national legislation, each Party shall accord adequate and effective protection to authors of literary and artistic works and to performers, producers of phonograms and broadcasting organizations, in their artistic performances, phonograms and broadcasts, respectively.
3. Independently of the economic rights of the author, and even after the transfer of such rights, the author shall retain, at least, the right to claim authorship of the work and to object to any distortion, mutilation or other modification thereof, or to any attack upon it, that would be prejudicial to his honor or reputation.
4. The rights recognized to the author in accordance with paragraph 3 shall be maintained after his death, at least until the extinction of his economic rights, and shall be exercised by the persons or institutions to whom the legislation of the country in which protection is claimed recognizes rights.
5. The rights granted under paragraphs 3 and 4 shall be granted, mutatis mutandis, to performers in respect of their live performances or fixed performances.
6. The Parties shall cooperate, through dialogues, on the protection of rights in favor of audiovisual performers, including the direct or indirect use for broadcasting or communication to the public of performances fixed in audiovisual fixations. (5)
7. Parties may provide in their legislation limitations and exceptions to copyright and related rights only in certain cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.
Article 9.7. ENFORCEMENT
1. Without prejudice to the rights and obligations established under the TRIPS Agreement, in particular Part III, the Parties may develop in their legislation, measures, procedures and remedies necessary to ensure the enforcement of intellectual property rights.
2. The Parties shall adopt procedures that allow the right holder, who has valid grounds to suspect that the importation, exportation, or transit of counterfeit trademark goods or pirated goods infringing copyright (6) is being prepared, to submit to the competent authorities, a request or complaint, according to the legislation of each Party, in order to have the customs authorities suspend the release of such goods.
3. Each Party shall provide that any right holder who initiates the procedure provided for in paragraph 2 shall be required to submit adequate evidence demonstrating to the satisfaction of the competent authorities that, under the law of the country of importation, there is a presumption of infringement of the right holder's intellectual property right; and to provide sufficient information on the goods that is reasonably known to the right holder so that the goods may be readily recognizable by its competent authorities. The requirement to provide sufficient information shall not unreasonably deter recourse to such procedures.
4. Each Party shall provide that the competent authorities shall have the authority to require the right holder, who initiates the procedure referred to in paragraph 2, to provide a security or equivalent assurance sufficient to protect the defendant and the competent authorities and to prevent abuse. The bond or equivalent security shall not unduly deter access to such proceedings.
5. Where its competent authorities determine that the goods are counterfeit or pirated, the Party shall empower its competent authorities to inform the right holder, the name and address of the consignor, importer and consignee, as well as the quantity of the goods in question.
6. Each Party shall provide that the competent authorities shall have the authority to initiate border measures ex officio, without the need for a formal request from the right holder or a third party, where there is reason to believe or suspect that goods being imported, exported or in transit are counterfeit or pirated.
Article 9.8. COOPERATION AND SCIENCE, TECHNOLOGY AND INNOVATION
1. The Parties shall exchange information and materials in education and dissemination projects regarding the use of intellectual property rights, consistent with their national laws, regulations, and policies, with a view to:
(a) improving and strengthening intellectual property administrative systems to promote efficient registration of intellectual property rights;
(b) stimulate the creation and development of intellectual property within the territory of the Parties, particularly small inventors and creators, as well as micro, small and medium-sized enterprises;
(c) promoting dialogue and cooperation in relation to science, technology, entrepreneurship and innovation; and
(d) other matters of mutual interest regarding intellectual property rights.
2. The Parties recognize the importance of promoting research, technological development, entrepreneurship and innovation, as well as the importance of disseminating technological information and building and strengthening their technological capabilities; to this end, they shall cooperate in these areas taking into consideration their resources.
3. The Parties shall encourage the establishment of incentives for research, innovation, entrepreneurship, transfer and dissemination of technology between the Parties, directed, among others, to companies, institutions of higher education, and research and technological development centers.
4. Cooperative activities in science, technology and innovation may take, among others, the following forms:
(a) participation in joint education, research, technological development and innovation projects;
(b) visits and exchanges of scientists and technical experts, as well as public, academic or private specialists;
(c) joint organization of scientific seminars, congresses, workshops and symposia, as well as participation of experts in these activities;
(d) promotion of scientific networks and training of researchers;
(e) concerted actions for the dissemination of results and the exchange of experiences in joint science, technology and innovation projects and for the coordination of such projects;
(f) exchange and loan of equipment and materials, including the shared use of advanced equipment;
(g) exchange of information on procedures, laws, regulations and programs related to cooperative activities carried out pursuant to this Agreement, including information on science and technology policy; and
(h) any other modalities agreed by the Parties.
5. The Parties may also engage in cooperative activities with respect to the exchange of:
(a) information and experience on legislative processes and legal frameworks related to intellectual property rights and regulations relevant to protection and enforcement;
(b) experiences on the enforcement of intellectual property rights;
(c) staff and staff training in offices related to intellectual property rights;
(d) information and institutional cooperation on intellectual property policies and developments;
(e) information and experience on policies and practices on the promotion of the development of the handicrafts sector; and
(f) experience in intellectual property management and knowledge management in higher education institutions and research centers.
6. Each Party designates as contact entities, responsible for the fulfillment of the objectives of this Article, and for facilitating the development of collaboration and cooperation projects in research, innovation and technological development, the following entities:
(a) in the case of Colombia, the Ministry of Commerce, Industry, and Tourism in coordination with the Administrative Department of Science, Technology, and Innovation (COLCIENCIAS); and
(b) in the case of Costa Rica, to the Ministry of Foreign Trade, in coordination with the Ministry of Justice and Peace and the Ministry of Science, Technology and Telecommunications,
or their successors.
Chapter 10. PUBLIC PROCUREMENT
Article 10.1. SCOPE OF APPLICATION
Application of the Chapter
1. This Chapter applies to any measure adopted by a Party relating to covered procurement.
2. For the purposes of this Chapter, covered procurement means a procurement of goods, services, or both:
(a) not procured with a view to commercial sale or resale, or with a view to use in the production or supply of goods or services for commercial sale or resale;
(b) made through any contractual means, including purchase, lease, with or without option to purchase; and public works concession contracts;
(c) for which the value, as estimated in accordance with paragraph 4, equals or exceeds the value of the relevant threshold set forth in Schedule 10-A;
(d) which is carried out by a procuring entity; and
(e) is not expressly excluded from coverage.
3. This Chapter does not apply to:
(a) non-contractual arrangements or any form of assistance that a Party, including its procuring entities, provides, including cooperative arrangements, grants, loans, subsidies, capital transfers, guarantees, and tax incentives;
(b) the contracting or procurement of fiscal agency services or depository services, settlement and administration services for regulated financial institutions, or services related to the sale, redemption and distribution of public debt, including government loans and bonds and other securities. For greater certainty, this Chapter does not apply to the procurement of banking, financial or specialized services relating to the following activities:
(i) public borrowing; or
(ii) public debt management;
(c) procurement financed by grants, loans or other forms of international assistance;
(d) the hiring of public employees and employment-related measures;
(e) procurement by a governmental entity or enterprise from another governmental entity or enterprise of that Party;
(f) the acquisition or lease of land, existing real estate or other immovable property or rights thereon;
(g) purchases made on exceptionally favorable terms that are only for a very short period of time, such as extraordinary disposals by enterprises that are not normally suppliers or the disposal of assets of enterprises in liquidation or under receivership. For purposes of this paragraph (g), the provisions of Article 10.11.3 shall apply; and
(h) procurements made for the specific purpose of providing assistance abroad.
Valuation
4. In estimating the value of a procurement for the purpose of determining whether it is a covered procurement, a procuring entity:
(a) shall not divide a procurement into separate procurements, or use a particular method for estimating the value of the procurement for the purpose of avoiding the application of this Chapter;
(b) shall take into account all forms of remuneration, including premiums, fees, dues, fees, commissions, interest, other revenue streams that may be provided for in the procurement, and where the procurement provides for the possibility of option clauses, the total maximum value of the procurement, including optional purchases; and
(c) shall, where the procurement is to be conducted in multiple parts, and results in the award of contracts at the same time or over a given period to one or more suppliers, base its calculation on the total maximum value of the procurement over the entire period of the procurement.
5. No procuring entity may prepare, design, structure or divide a procurement for the purpose of evading the obligations of this Chapter.
6. Nothing in this Chapter shall prevent a Party from developing new procurement policies, procedures or contractual means, provided that they are consistent with this Chapter.
Article 10.2. SECURITY AND GENERAL EXCEPTIONS
1. Nothing in this Chapter shall be construed to prevent a Party from taking any action or refraining from disclosing any information that it considers necessary for the protection of its essential national security interests or for national defense.
2. Provided 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 exist 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 the goods or services of handicapped persons, charitable institutions, or correctional labor.
3. The Parties understand paragraph 2(b) to include environmental measures necessary to protect human, animal or plant life or health.
Article 10.3. GENERAL PRINCIPLES
National Treatment and Non-Discrimination
1. With respect to any measure covered by this Chapter, each Party shall accord immediately and unconditionally to goods and services of the other Party, and to suppliers of the other Party offering such goods or services, treatment no less favorable than the most favorable treatment accorded by that Party to its own goods, services, and suppliers.
2. With respect to any measure covered by this Chapter, a Party may not:
(a) treat a locally established supplier less favorably than another locally established supplier because of its degree of foreign affiliation or ownership; or
(b) discriminate against a locally established supplier on the basis that the goods or services offered by such supplier for a particular procurement are goods or services of the other Party.
Enforcement of Procurement
3. A procuring entity shall conduct covered procurement in a transparent and impartial manner that:
(a) is consistent with this Chapter;
(b) avoids conflicts of interest; and
(c) prevents corrupt practices.
Rules of Origin
4. Each Party shall apply to covered government procurement of goods or services imported from or supplied by the other Party the rules of origin that it applies in the normal course of trade in such goods or services.
Special Countervailing Duty Conditions
5. A procuring entity shall not seek, take into consideration, impose or use special countervailing conditions at any stage of a covered procurement.
Measures Not Specific to Procurement
6. 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 collection of such duties and charges; other import regulations or formalities; or measures affecting trade in services, other than measures governing covered procurement.
Article 10.4. USE OF ELECTRONIC MEANS IN GOVERNMENT PROCUREMENT
1. The Parties recognize the need for and importance of the use of electronic means for the dissemination of information relating to covered procurement.
2. In order to facilitate business opportunities for suppliers of the other Party under this Chapter, each Party shall maintain or make best efforts to adopt an electronic single point of entry for the purpose of allowing access to complete information on procurement opportunities in its territory, as well as on procurement-related measures, especially those set out in Articles 10.5, 10.6.1, 10.6.3, 10.9.1, 10.9.7, and 10.14.2.
3. Where covered procurement is conducted through electronic means, a procuring entity shall:
(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 other 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 10.5. PUBLICATION OF PROCUREMENT INFORMATION
Each Party shall:
(a) publish in a timely manner all generally applicable regulations with respect to covered procurement, and any amendments to such regulations, in an electronic medium listed in Annex 10-A; and
(b) on request of the other Party, provide an explanation regarding such information.
Article 10.6. PUBLICATION OF NOTICES
Notice of Future Procurement
1. For each covered procurement, a procuring entity shall publish in a timely manner a notice inviting suppliers to submit tenders, or where appropriate, an application to participate in the procurement, except in the circumstances described in Article 10.11.2. Such notice shall be published in one of the electronic media or in print media widely and easily accessible to the public listed in Annex 10-C, and each such notice shall be accessible to the public for the full tendering period for the procurement concerned.
2. Each notice of future procurement shall include:
(a) the description of the prospective procurement, including the nature of the goods or services to be procured;
(b) the method of procurement to be used and whether it will involve negotiation;
(c) any conditions that suppliers must satisfy in order to participate in the procurement, including requirements relating to specific documents or certifications that suppliers must submit in order to participate in the procurement; and
(c) any conditions that suppliers must satisfy in order to participate in the procurement, including requirements relating to specific documents or certifications that suppliers must submit in connection with their participation, unless such requirements are included in the solicitation documents that are made available to all interested suppliers at the same time that notice of the intended procurement is made;
(d) the name and address of the procuring entity and other information necessary to contact it and to obtain all relevant documentation relating to the procurement, as well as its cost and payment terms, where applicable;
(e) where applicable, the address and final date for the submission of requests for participation in the procurement;
(f) the address and final date for the submission of bids;
(g) the dates of delivery of the goods or services to be procured, or the duration of the contract; and
(h) an indication that the procurement is covered by this Chapter.
Notice of Procurement Plans
3. Each Party shall encourage its procuring entities to publish in an electronic or print medium, as early as practicable in each fiscal year, a notice regarding its future procurement plans. Such notices shall include the subject matter or category of goods and services to be procured and the estimated period in which the procurement will be conducted.
Article 10.7. CONDITIONS FOR PARTICIPATION
When establishing conditions for participation, a procuring entity shall:
(a) shall limit these conditions to those that are essential to ensure that the supplier possesses the legal and financial capabilities, and the commercial and technical skills, to meet the requirements and technical specifications of the procurement on the basis of the supplier's business activities conducted both within and outside the territory of the Party of the procuring entity;
(b) base its decision only on the terms and conditions that the procuring entity has specified in advance in the notices or procurement documents;
(c) shall not make it a condition of participation in a procurement or the award of a procurement contract that the supplier has previously been awarded one or more procurement contracts by a procuring entity of the Party concerned;
(d) may require prior relevant experience where essential to meet the requirements of the procurement; and
(e) shall allow all domestic suppliers and suppliers of the other Party that have satisfied the conditions for participation to be recognized as qualified and to participate in the procurement.
2. Where there is evidence to justify it, a Party, including its procuring entities, may exclude a supplier from a procurement for reasons such as:
(a) bankruptcy;
(b) misrepresentation;
(c) significant or persistent deficiencies in the performance of any substantive requirement or obligation under a prior contract or contracts;
(d) final convictions for felonies or other serious violations;
(e) professional misconduct or acts or omissions that call into question the business integrity of the supplier; or
(f) nonpayment of taxes.
3. Procuring entities shall not adopt or apply a registration system or qualification procedure with the purpose or effect of creating unnecessary obstacles to the participation of suppliers of the other Party in their respective procurement.
4. A procuring entity shall promptly inform any supplier that has applied for qualification of its decision with respect to that application. Where a procuring entity rejects an application for qualification or ceases to recognize a supplier as one that meets the conditions for participation, the procuring entity shall promptly inform the supplier and, on request, provide the supplier with a timely written explanation of the reasons for the entity's decision.
Article 10.8. REGISTRATION AND QUALIFICATION OF SUPPLIERS
Registration systems and qualification procedures
1. Parties, including their procuring entities, may maintain a supplier registration system where interested suppliers register and provide certain information.
2. Each Party shall endeavor to ensure that its procuring entities: