3. Each Party shall provide that any right holder initiating the procedure provided for in paragraph 2 shall be required to present adequate evidence to demonstrate 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 proceedings referred to in paragraph 2, to provide a bond or equivalent security 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 of 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 be empowered to initiate border measures ex Officio, without the need for a formal request from the right holder or a third party, when there are reasons to believe or suspect that the goods being imported, exported or in transit are counterfeit or pirated.
Article 9.8. Cooperation and Science and Technology
1. The Parties shall exchange information and material in education and dissemination projects regarding the use of intellectual property rights, in accordance with their national laws, regulations and policies, with a view to:
(a) improve and strengthen intellectual property administrative systems to promote the efficient registration of intellectual property rights;
(b) stimulate the creation and development of intellectual property within the territory of the Parties, particularly for 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, aimed, among others, at companies, universities, research centers and technology centers.
4. Cooperative activities in science and technology 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 seminars, congresses, workshops and scientific 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 on joint science and technology projects and for their coordination;
(f) exchange and loan of equipment and materials, including sharing 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 modality agreed upon by the Parties.
5. Likewise, the Parties may cary out cooperative activities regarding the exchange of:
(a) information and expertise on the legislative processes and legal frameworks related to intellectual property rights and the relevant regulations for protection and enforcement,
(b) experiences on the enforcement of intellectual property rights;
(c) personnel and training of the same in the 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 to promote 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:
(a) Costa Rica: the Ministry of Foreign Trade, in coordination with the Ministry of Justice and Peace and the Ministry of Science and Technology; and
(b) Peru: the National Council for Science, Technology and Technological Innovation (CONCYTEC), or its 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 contracted 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) The Company's financial statements are presented on the basis of the information contained in the accompanying notes to the consolidated financial statements and are included in the accompanying consolidated financial statements;
(c) for which the value, as estimated in accordance with paragraph 4, equals or exceeds the corresponding threshold value stipulated in Annex 10.1 (Coverage Annex);
(d) carried out by a contracting entity; and
(e) that 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 contracting entities, provides, including cooperation agreements, 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 indebtedness; or
(ii) public debt management,
(c) procurement financed through grants, loans or other forms of international assistance;
(d) 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 real property or rights thereon;
(g) purchases made under exceptionally favorable conditions that only occur for a very short period of time, such as extraordinary disposals made by companies that are not normally suppliers or the disposal of assets of companies in liquidation or under judicial administration. For purposes of this subparagraph, the provisions of Article 10.10.3 shall apply; and
(h) contracts entered into for the specific purpose of providing assistance to foreign countries.
Valuation
4. In estimating the value of a procurement for the purpose of determining whether itis 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 evading 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 stipulated 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 procurements 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 its validity.
5. No procuring entity may prepare, design, structure or divide a public 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. Safety 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 deemed necessary for the protection of its essential national security interests or for national defense.
2. Nothing in this Chapter shall be construed to prevent a Party from adopting or maintaining the 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) related to the goods or services of disabled persons, charitable institutions or prison labor,
provided that such measures are not applied in a discriminatory manner or constitute a disguised restriction on trade.
3. The Parties understand that subparagraph 2(b) includes 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 that supplier for a particular procurement are goods or services of the other Party.
Use of Electronic Media
3. When covered procurement is conducted through electronic means, a procuring entity shall:
{a) ensuring 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 determining the time of receipt and preventing inappropriate access.
Execution of Public Procurement
4. A procuring entity shall conduct covered procurement in a transparent and impartial manner, such that:
(a) is consistent with this Chapter,
(b) avoid conflicts of interest, and
(c) prevent corrupt practices.
Rules of Origin
5. Each Party shall apply to covered 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 Compensatory Conditions
6. A procuring entity shall not seek, consider, impose or use special countervailing terms and conditions at any stage of a covered procurement
Non-Specific Measures to Public Procurement
7. 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 Public Procurement
1. The Parties recognize the need 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 outin Articles 10.5, 10.6.1, 10.6.3, 10.8.1, 10.8.7, and 10.13.2.
Article 10.5. Publication of Procurement Information Each Part:
(a) publish in a timely manner all regulations of general application with respect to covered procurement, and any amendments to such regulations, in an electronic medium listed in Exhibit 10.1 (Coverage Annex); and
(b) at the request of the other Party, provide an explanation conceming such information.
Article 10.6. Publication of Notices Notice of Future Engagement
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 10.10.2. Such notice shall be published in an electronic medium or in print media that are widely disseminated and easily accessible to the public, and each such notice shall be accessible to the public for the full tendering period for the respective procurement.
2. Each notice of future hiring shall include:
(a) the description of future public procurement,
(b) the method of procurement to be used;
(c) any conditions that suppliers must satisfy in order to participate in public procurement,
(d) the name of the contracting entity publishing the notice;
(e) the address and point of contact where suppliers can obtain all relevant procurement documentation;
(f) where applicable, the address and final date for the submission of requests for participation in the procurement,
(g) the address and final date for submission of bids;
(h) the dates of delivery of the goods or services to be contracted or the duration of the contract, and {i) an indication that the procurement is covered by this Chapter.
Notice of Hiring Plans
3. Each Party shall encourage its procuring entities to publish in an electronic or printed 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
1. Where a Party requires suppliers to comply with registration, qualification or any other requirement or condition of participation in a procurement, the procuring entity shall publish a notice inviting suppliers to apply for such participation. The procuring entity shall publish the notice sufficiently in advance to allow interested suppliers sufficient time to prepare and submit their applications and for the procuring entity to evaluate and make its determinations on the basis of such applications.
2. At the time of establishing the conditions of participation, a procuring entity:
(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 solely on the terms and conditions that the procuring entity has specified in advance in the procurement documents or notices;
(c) shall not make it a condition of participation in a procurement contract, that the supplier has previously been awarded one or more procurement contracts by a procuring entity of the Party in question;
(d) may require prior relevant experience when 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.
3. Where there is evidence to justify it, a Party, including its procuring entities, may exclude a supplier from a procurement on grounds such as:
(a) bankruptcy,
(b) false statements;
(c) significant or persistent deficiencies in the fulfillment of any substantive requirement or obligation arising from one or more previous contracts;
(d) final sentences for felonies or other serious offenses;
(e) professional misconduct or acts or omissions that call into question the business integrity of the supplier; or
(f) non-payment of taxes.
4. 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.
5. The process of, and the time required for, registration and qualification of suppliers shall not be used to exclude suppliers of the other Party from being considered for a particular procurement.
6. A procuring entity shall promptly inform any supplier that has applied for qualification of its decision with respect to that application. When 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 upon request, provide the supplier with a timely written explanation of the reasons for the entity's decision.
Article 10.8. Information on Future Procurements
Contracting Documents
1. Aprocuring entity shall provide in a timely manner to suppliers interested in participating in a procurement, procurement documents that include all necessary information to enable them to prepare and submit responsive tenders in accordance with Annex 10.8.1. Where a procuring entity does not publish the procurement documents by electronic means accessible to all interested suppliers, it shall, upon request of any supplier, promptly make the documents available in written form.
Technical Specifications
2. A contracting entity shall not prepare, adopt or apply any technical specification or require any conformity assessment procedure that has the purpose or effect of creating unnecessary obstacles to trade between the Parties.
3. In establishing any technical specifications for the goods or services to be procured, a procuring entity shall, where appropriate:
(a) The technical specification should be set in terms of performance and functional requirements, rather than the descriptive or design features; and
(b) base the technical specification on international standards, where applicable, or otherwise on national technical regulations, recognized national standards or building codes.
4. A procuring entity shall not prescribe technical specifications that require or refer to a particular trademark or trade name, patent, copyright, design, type, specific origin, producer or supplier, unless there is no other sufficiently precise or intelligible way of describing the procurement requirements, and provided that, in such cases, expressions such as "or equivalent" shall also be included in the procurement documents.
5. A procuring entity shall not solicit or accept, in a manner that may have the effect of precluding competition, advice that could be used in preparing or adopting any technical specification for a specific procurement from any person that may have a commercial interest in that procurement.
6. For greater certainty, this Article is not intended to prevent a contracting entity from preparing, adopting or applying technical specifications to promote the conservation of natural resources or protect the environment.
Modifications
7. When, in the course of a covered procurement, a procuring entity modifies the criteria or technical requirements set forth in a notice or procurement document provided to participating suppliers, or modifies a notice or procurement document, it shall transmit such modifications in writing:
(a) to all suppliers that are participating at the time of the modification of the information, if the identification of such suppliers is known, and in all other cases, in the same manner as the original information was transmitted; and
(b) with sufficient time to allow suppliers to modify and resubmit their corrected bids, as appropriate.
Article 10.9. Deadlines
1. A procuring entity shall provide suppliers sufficient time to submit applications to participate in a procurement and to prepare and submit suitable tenders, taking into account the nature and complexity of the procurement. A procuring entity shall allow a period of not less than forty (40) days from the date on which the notice of intended procurement is published and the final date for submission of tenders.
2. Notwithstanding the provisions of paragraph 1, a procuring entity may establish a period of less than forty (40) days, but in no case less than ten (10) days, in the following circumstances:
(a) where the procuring entity has published a separate notice containing a description of the procurement, the approximate deadlines for submission of bids or, where appropriate, conditions for participation in a procurement and the address where documentation relating to the procurement may be obtained, at least forty (40) days and not more than twelve (12) months in advance;
(b) in the case of a new, second or subsequent publication of notices for a public procurement of a recurring nature;
(c) when an emergency situation duly justified by a procuring entity makes it impracticable to meet the deadline stipulated in paragraph 1; or
(d) when the procuring entity purchases commercial goods or services.
3. A Party may provide that a procuring entity may reduce the deadline for submitting tenders set forth in paragraph 1 by five (5) days for each of the following circumstances:
(a) when the notice of future procurement is published by electronic means;