(i) the contest has been organised in a manner that is consistent with this Chapter, and
(ii) the contest is judged by an independent jury with a view to award design contract to the winner; or
(iii) in so far as is necessary if, for reasons of 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.
3. For each contract awarded in accordance with paragraph 2, a procuring entity shall 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.
Article 10.12. Negotiations
1. A Party may provide for its procuring entities to conduct negotiations in the context of covered procurement if:
(a) the procuring entity has indicated its intent to conduct negotiations in the notice of intended procurement required under Article iG.7 (Notices of Intended Procurement);
(b) it appears from the evaluation that no tender is obviously the most advantageous in terms of the specific technical evaluation criteria set out in the notice of intended procurement or tender documentation;
(c) there is a need to clarify the terms and conditions;
(d) all bids exceed the allocated prices provided for in the procuring entity's budget:
(e) there is a need for consultation with the supplier who submitted the tender with the lowest price.
2. 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.
Article 10.13. Technical Specifications
1. 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.
2. In prescribing the technical specifications for the good or service being procured, a procuring entity shall, where it deems appropriate:
(a) set out the technica! specifications in terms of performance and functional requirements, as far as possible, rather than design or descriptive characteristics; and
(b) base the technical specifications on international standards or on national technical regulations, national standards, or building codes, where applicable, in conformity with the Party's laws and regulations.
3. A procuring entity shall not prescribe technical specifications that require or refer to a particular trademark, trade name, brand or copyright, 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.
4, 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.
5. 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.
6. 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.
Article 10.14. Tender Documentation
1. 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:
(a) 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;
(b) any conditions for participation, including any financial guarantees, information, and documents that suppliers are required to submit;
(c) all criteria to be considered in the awarding of the contract and the relative importance of those criteria;
(d) if there will be a public opening of tenders, the date, time, and place for the opening;
(e) any date for delivery of a good or supply of a service; and
(f) any other terms or conditions relevant to the evaluation of tenders.
2. 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.
3. 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.
4. 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
5. 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 which affects the terms contained therein, it shall publish or provide those modifications, or the amended or re-issued notice or tender documentation:
(a) 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 issuing the tender notice for that specific procurement, and in all other cases, in the same manner as the original information was made available; and
(b) in adequate time to allow those suppliers to modify and re-submit their initial tender, if appropriate.
Article 10.15. Time Periods
1. A procuring entity shall, consistent with its own reasonable needs, provide sufficient time for a supplier to prepare and submit a request for participation and responsive tender, taking into account factors such as:
(a) the nature and complexity of the procurement;
(b) the extent of subcontracting anticipated; and
(c) the time necessary for transmitting tenders by non-electronic means from foreign as well as domestic points where 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.
2. The time period for procurement shall be in accordance with each Party's laws and regulations.
Article 10.16. Treatment of Tenders and Awarding of Contracts
Treatment of Tenders
1. 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.
2. lf the tender of a supplier is received after the time specified for receiving tenders, the procuring entity shall not penalise that supplier if the delay is due solely to the mishandling on the part of the procuring entity.
3. A procuring entity shall not discriminate between the participating suppliers in providing an opportunity to correct unintentional errors of form between the opening of tenders and the awarding of the contract.
Awarding of Contracts
4. 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 submitted by a supplier who satisfies the conditions for participation.
5. 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, submits:
(a) the most advantageous tender; or
(b) if price is the sole criterion, the lowest price.
6. If a procuring entity receives 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. If the procuring entity determines that the bidder has substantially failed to demonstrate its capability to deliver the contract at the offered price, the procuring entity may reject the tender.
7. 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.
Article 10.17. Transparency and Post-Award Information
Information Provided to Suppliers
1. 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 a 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.
2. Subject to Article 10.18 (Disclosure of Information), a procuring entity should keep a provision in the tender document to enable an unsuccessful supplier to request an explanation for its rejection. The procuring entity shall disclose the reasons for rejection where an explanation is sought by the unsuccessful supplier.
Maintenance of Records
3. A procuring entity shall maintain the documentation and records relating to tendering procedures and contract awards for covered procurement, including the records provided for in paragraph 3 of Article 10.11 (Limited Tendering), for at least three (3) years after the award of a contract.
Article 10.18. Disclosure of Information
Provision of Information to Parties
1. On request of the other Party, a Party shall provide promptly information necessary to demonstrate whether a procurement was conducted fairly, impartially and in accordance with this Chapter, including, if applicable, information on the characteristics and relative advantages of the successful tender, without disclosing confidential information. 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
2. Notwithstanding any other provision of this Chapter, a Party, including its procuring entities, shall not, except to the extent required by any law, rule, regulation, procedure or practice of a Party or with the written authorisation 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.
3. 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:
(a) would impede law enforcement;
(b) might prejudice fair competition between suppliers;
(c) would prejudice the legitimate commercial interests of particular persons, including the protection of intellectual property;
(d) would be contrary to the public interest; or
(e) would affect the security interests of a Party;
4. Article 1.8 (Confidential Information) shall not apply to this Chapter.
Article 10.19. Ensuring Integrity In Procurement Practices
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.
Article 10.26. Domestic Review.
1. Each Party shall maintain, establish, or designate at least one impartial administrative or judicial authority (review authority) that is independent of its procuring entities to review, in a non-discriminatory, timely, transparent, and effective manner, a challenge or complaint by a supplier that there has been:
(a) a breach of this Chapter; or
(b) a failure of a procuring entity to comply with the Party's measures implementing this Chapter, in cases where the supplier does not have a right to directly challenge a breach of this Chapter under the law of the Party;
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.
2. 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, if appropriate, 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.
3. 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.
4. 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.
5. 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) a supplier shall be allowed sufficient time to prepare and submit a complaint in writing, which in no case shall be less than ten (10) days from the time when the basis of the complaint became known or reasonably should have become known to the supplier;
(b) a procuring entity shall respond in writing to a supplier's complaint and provide all relevant documents to the review authority;
(c) 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
(d) 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.
6. Each Party shall adopt or maintain procedures that provide for:
(a) 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
(b) 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.
Article 10.21. Modifications and Rectifications of Annex
1. A Party shall notify any proposed modification or rectification (modification) to its Schedule under Annex 10A (for India) or Annex 10B (for the UAE) 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.
2. A Party is not required to provide compensatory adjustments to the other Party if the proposed modification concerns one of the following:
(a) a procuring entity over which the Party has effectively eliminated its control or influence in respect of covered procurement by that procuring entity; or
(b) rectifications of a purely formal nature and minor modifications to its Schedule under Annex 10A (for India) or Annex 10B (for the UAE), such as:
(i) changes in the name of a procuring entity,
(ii) the merger of one or more procuring entities listed in its Schedule,
(iii) 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
(iv) changes in website references,
and the other Party does not object under paragraph 3 on the basis that the proposed modification does not concern subparagraph (a) or (b).
3. 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 forty-five (45) days of the date of circulation of the notice.
4. 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. If the Parties are unable to resolve the objection through consultations, the objecting Party may make an appropriate compensatory adjustment to its coverage to maintain a level of coverage comparable to that existing prior to the modification. (1)
5. The Joint Committee shall modify Annex 10A (for India) or Annex 10B (for the UAE) to reflect any agreed modification.
Article 10.22. Facilitation of Participation by Micro, Small and Medium Enterprises (MSMEs)
1. The Parties recognise the important contribution that MSMEs can make to economic growth and employment and the importance of facilitating the participation of MSMEs in government procurement.
2. If a Party maintains a measure that provides preferential treatment for its MSMEs, the Party shall ensure that the measure, including the criteria for eligibility, is transparent.
3. To facilitate participation by MSMEs in covered procurement, each Party shall, to the extent possible and if appropriate:
(a) provide comprehensive procurement-related information that includes a definition of MSMEs in a single electronic portal;
(b) endeavour to make all tender documentation available free of charge;
(c) conduct procurement by electronic means or through other new information and communication technologies; and
(d) consider the size, design, and structure of the procurement, including the use of subcontracting by MSMEs.
4. Each Party reserves the right to apply a preferential procurement policy for its MSMEs in accordance with its laws and regulations.
Article 10.23. Financial Obligations.
1. This Chapter does not entail any financial obligations to the Parties.
2. Each Party is responsible for any financial expenses incurred to fulfil its role under this Chapter.
Article 10.24. Language.
To Improve Market Access to Each Party's Procurement Market, Each Party Shall, Where Possible, Use the English Language In Its Publication of Materials or Information Pursuant to Article 10.6 (Publication of Procurement Information), Including In the Publications Listed In Section E of Each Party's Schedule Under Annex 10A (for India) and Annex 10B (for the UAE).
Article 10.25. Dispute Settlement Mechanism
Chapter 15 (Dispute Settlement) shall not apply to this Chapter. The nonapplication of Chapter 15 (Dispute Settlement) shall be subject to review after three (3) years from the date of the entry into force of this Agreement. ln the course of the review, Parties shall give due consideration to the application of Chapter 1b (Dispute Settlement) to either the whole or part(s) of this Chapter. Such a review shall be completed within four (4) years from the date of the entry into force of this Agreement.
Chapter 11. INTELLECTUAL PROPERTY
Section A. General Provisions
Article 11.1. Definitions
For the purposes of this Chapter:
"geographical indication" means an indication that identifies a good as originating in the territory of a Party, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin;
"intellectual property" refers to all categories of intellectual property that are the subject of Sections 1 through 7 of Part Il of the TRIPS Agreement; and
a "national" means, in respect of the relevant right, a person of a Party that would meet the criteria for eligibility for protection provided for in the TRIPS Agreement.
Article 11.2. Objectives
The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.
Article 11.3. Principles
1. A Party may, in formulating or amending its laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Chapter.
2. The Parties recognise that appropriate measures, provided that they are consistent with the provisions of this Chapter, may be needed to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology.
Article 11.4. Understandings In Respect of this Chapter
Having regard to the underlying public policy objectives of nationat systems, the Parties recognise the need to:
(a) promote innovation and creativity;
(b) facilitate the diffusion of information, knowledge, technology, culture and the arts; and
(c) foster competition
through their respective intellectual property systems, while respecting the principles of transparency and due process, and taking into account the interests of right holders, users and the public.
Article 11.5. Nature and Scope of Obligations
Each Party shall give effect to the provisions of this Chapter. A Party may, but shall not be obliged to, provide more extensive protection for, or enforcement of, intellectual property rights under its law than is required by this Chapter, provided that such protection or enforcement does not contravene the provisions of this Chapter. Each Party shall be free to determine the appropriate method of implementing the provisions of this Chapter within its own legal system and practice.
Article 11.6. TRIPS and Public Health
1. The Parties:
(a) reaffirm, in general, their right to utilise the flexibilities provided in the TRIPS Agreement;
(b) reaffirm, in particular, the Doha Declaration on the TRIPS Agreement and Public Health adopted on 14 November 2001 by the Ministerial Conference of the WTO; and
(c) affirm that this Chapter shall be interpreted and implemented in a manner supportive of each Party's right to protect public health and, in particular, to promote access to medicines for all sections of the public.
2. The Parties have reached the following understanding regarding the protection of intellectual property rights under this Agreement:
(a) this Chapter does not, in any manner whatsoever, prevent the Parties from taking measures to protect public health;
(b) this Chapter does not, in any manner whatsoever, prevent the effective utilisation of Article 31bis of the TRIPS Agreement and the Annex and Appendix to the Annex to the TRIPS Agreement;