Note: For greater certainty, this Article is without prejudice to a Party’s law pertaining to intellectual property and personal data protection.
2. The Parties recognize the benefit of making data held by local governments digitally available for public access and use in a manner consistent with paragraphs 3 through 5.
3. The Parties recognize that facilitating public access to and use of government data fosters economic and social development, competitiveness and innovation. To this end, the Parties are encouraged to expand the coverage of such data, such as through engagement and consultation with interested persons.
4. To the extent that a Party chooses to make government data digitally available for public access and use, it shall endeavor, to the extent practicable, to ensure that such data is:
(a) made available in a machine-readable and open format;
(b) searchable and retrievable;
(c) updated, as applicable, in a timely manner;
(d) accompanied by metadata that is, to the extent possible, based on commonly used formats that allow the user to understand and utilize the data; and
(e) made generally available at no or reasonable cost to the user.
5. To the extent that a Party chooses to make government data digitally available for public access and use, it shall endeavor to avoid imposing conditions that unduly prevent or restrict the user of such data from:
(a) reproducing, redistributing or republishing the data;
(b) regrouping the data; or
(c) using the data for commercial and non-commercial purposes, including in the process of producing a new product or service.
Note: For greater certainty, nothing in this paragraph shall prevent a Party from requiring a user of such data to link to original sources.
6. The Parties shall endeavor to cooperate on matters that facilitate and expand public access to and use of government data, including exchanging information and experiences on practices and policies, with a view to encouraging the development of electronic commerce and creating business opportunities, particularly for MSMEs.
Article 10.16. Conclusion of Contracts by Electronic Means
Unless otherwise provided for in its laws and regulations, a Party shall not adopt or maintain measures regulating contracts by electronic means that:
(a) deny the legal effect, validity or enforceability of a contract, solely on the grounds that it is concluded by electronic means; or
(b) otherwise create obstacles to the use of contracts concluded by electronic means.
Article 10.17. Electronic Invoicing
1. The Parties recognize that electronic invoicing frameworks can help to improve the cost effectiveness, efficiency, accuracy and reliability of electronic commerce transactions.
2. To the extent that a Party develops a measure related to electronic invoicing frameworks, that Party shall endeavor to design the measure to support cross-border interoperability, including by taking into account relevant international standards, guidelines or recommendations, where they exist.
3. Each Party shall endeavor, as appropriate, to share best practices pertaining to electronic invoicing.
Article 10.18. Transparency
1. Each Party shall publish as promptly as possible or, if that is not practicable, otherwise make publicly available, including on the Internet if feasible, all relevant measures of general application pertaining to or affecting the operation of this Chapter.
2. Each Party shall respond as promptly as possible to a relevant request from the other Party for specific information on any of its measures of general application pertaining to or affecting the operation of this Chapter.
Article 10.19. Cooperation
Recognizing the global nature of electronic commerce, the Parties shall endeavor to:
(a) work together to assist MSMEs to overcome obstacles in the use of electronic commerce;
(b) exchange information and share experiences on regulations, policies, enforcement and compliance regarding electronic commerce, including:
(i) personal information protection;
(ii) online consumer protection, including means for consumer redress and building consumer confidence;
(iii) unsolicited commercial electronic messages;
(iv) security in electronic communications;
(v) electronic authentication and electronic signature;
(vi) e-government, conclusion of contracts by electronic means, electronic invoicing and open government data; and
(vii) any other area as jointly decided by the Parties;
(c) exchange information and share views on consumer access to products and services offered online between the Parties;
(d) encourage development by the private sector of methods of self-regulation that foster electronic commerce, including codes of conduct, model contracts, guidelines and enforcement mechanisms; and
(e) cooperate in any other area as jointly decided by the Parties.
Article 10.20. Electronic Payments
1. For the purposes of this Article:
(a) the term “electronic payment” means the payer’s transfer of a monetary claim on a person that is acceptable to the payee and made through electronic means, but does not include payment services of central banks involving settlement between financial service suppliers; and
Note: For greater certainty, nothing in this Article shall require a Party to grant electronic payments service suppliers of the other Party not established in its Area access to payment services of central banks that involve settlement between financial service suppliers.
(b) the term “self-regulatory organization” means a non-governmental body that is recognized by a Party as a self-regulatory body and exercises regulatory or supervisory authority over electronic payments service suppliers or financial service suppliers by statute of or delegation from that Party’s central or local government.
2. Noting the rapid growth of electronic payments, in particular those supplied by new electronic payments service suppliers, the Parties recognize:
(a) the benefit of supporting the development of safe, efficient, trustworthy, secure, affordable and accessible cross-border electronic payments by fostering the adoption and use of internationally accepted standards, promoting interoperability of electronic payments systems, and encouraging useful innovation and competition in electronic payments services;
(b) the importance of enabling the introduction of safe, efficient, trustworthy, secure, affordable and accessible electronic payment products and services in a timely manner; and
(c) the importance of upholding safe, efficient, trustworthy, secure and accessible electronic payments systems through laws and regulations that, if appropriate, account for the risks of such systems.
3. In accordance with its laws and regulations, each Party shall endeavor to:
(a) further to Article 10.18, make its laws and regulations on electronic payments, including those pertaining to regulatory approvals, licensing requirements, procedures and technical standards, publicly available in a timely manner;
(b) finalize decisions on regulatory or licensing approvals in a timely manner;
(c) take into account, for relevant electronic payments systems, internationally accepted payment standards to enable greater interoperability between electronic payments systems; and
(d) encourage electronic payments service suppliers and financial service suppliers to facilitate greater interoperability, competition, security and innovation in electronic payments, which may include partnerships with third-party providers, subject to appropriate risk management.
4. Further to Article 10.18, each Party shall, to the extent applicable, take such reasonable measures as may be available to it to ensure that the rules of general application adopted or maintained by its self-regulatory organizations are promptly published or otherwise made publicly available.
5. For greater certainty, nothing in this Article shall be construed to impose an obligation on a Party to modify its domestic rules on payments, including, inter alia, the need to obtain licenses or permits or the approval of access applications.
Article 10.21. Reassessment and Review
The Parties shall, within three years of the date of entry into force of this Agreement, reassess the need for inclusion of provisions into this Chapter on not imposing customs duties on electronic transmissions, and review subparagraph 3(b) of Article 10.10 and subparagraph 3(b) of Article 10.11.
Chapter 11. Government Procurement
Article 11.1. Objectives
The Parties recognize that it is important for a Party to accord national treatment and most-favored-nation treatment to goods, services and suppliers of the other Party with respect to the measures regarding government procurement, with a view to achieving greater liberalization and expansion of trade between the Parties. Each Party shall ensure transparency and fair and effective implementation of the measures regarding government procurement.
Article 11.2. Definitions
For the purposes of this Chapter:
(a) the term “construction service” means a service that has as its objective the realization by whatever means of civil or building works, based on Division 51 of the United Nations Provisional Central Product Classification (CPC);
(b) the term “in writing” or “written” means any worded or numbered expression that can be read, reproduced and later communicated. It may include electronically transmitted and stored information;
(c) the term “limited tendering” means a procurement method whereby the procuring entity contacts a supplier or suppliers of its choice;
Note: For the purposes of this Chapter, the term “limited tendering” means, for Bangladesh, “direct procurement method”.
(d) the term “multi-use list” means a list of suppliers that a procuring entity recognizes as satisfying the conditions for participation in that list, and that the procuring entity intends to use more than once;
Note: For the purposes of this Chapter, the term “multi-use list” means, for Bangladesh, “enlistment”.
(e) the term “notice of intended procurement” means a notice published by a procuring entity inviting interested suppliers to submit a request for participation, a tender or both;
Note: For the purposes of this Chapter, the term “notice of intended procurement” means, for Bangladesh, “invitation for tender”.
(f) the term “offset” means any condition or undertaking that encourages local development or improves each Party’s balance-of-payments accounts, such as the use of domestic content, the licensing of technology, investment, counter-trade and similar action or requirement;
(g) the term “open tendering” means a procurement method whereby all interested suppliers may submit a tender;
(h) the term “procuring entity” means an entity covered under Annex 8;
(i) the term “qualified supplier” means a supplier that a procuring entity recognizes as satisfying the conditions for participation;
Note: For the purposes of this Chapter, the term “qualified supplier” includes, for Bangladesh, qualified supplier and pre-qualified supplier as defined in its laws and regulations.
(j) the term “selective tendering” means a procurement method whereby only qualified suppliers are invited by the procuring entity to submit a tender;
Note: For the purposes of this Chapter, the term “selective tendering” means, for Bangladesh, “limited tendering”.
(k) the term “services” includes construction services, unless otherwise specified;
(l) the term “standard” means a document approved by a recognized body that provides, for common and repeated use, rules, guidelines or characteristics for goods or services, or related processes and production methods, with which compliance is not mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labeling requirements, as they apply to a good, service, process or production method;
(m) the term “supplier” means a person or group of persons that provides or could provide goods or services; and
Note: For the purposes of this Chapter, the term “suppliers” means, for Bangladesh, “suppliers and contractors”.
(n) the term “technical specification” means a tendering requirement that:
(i) lays down the characteristics of goods or services to be procured, including quality, performance, safety and dimensions, or the processes and methods for their production or provision; or
(ii) addresses terminology, symbols, packaging, marking or labeling requirements, as they apply to a good or service.
Article 11.3. Scope and Coverage
Application of this Chapter
1. This Chapter shall apply to any measure regarding covered procurement, whether or not it is conducted exclusively or partially by electronic means.
2. For the purposes of this Chapter, the term “covered procurement” means procurement for governmental purposes:
(a) of goods, services or any combination thereof:
(i) as specified in Annex 8; and
(ii) 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;
(c) for which the value, as estimated in accordance with paragraphs 4 and 5, equals or exceeds the relevant threshold specified in Annex 8, at the time of publication of a notice in accordance with Article 11.7;
(d) by a procuring entity; and
(e) that is not otherwise excluded from the coverage under Annex 8.
3. Where a procuring entity, in the context of covered procurement, requires persons not covered under Annex 8 to procure in accordance with particular requirements, Article 11.5 shall apply mutatis mutandis to such requirements.
Valuation
4. In estimating the value of a procurement for the purpose of ascertaining whether it is a covered procurement, a procuring entity shall:
(a) neither divide a procurement into separate procurements nor select or 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; and
(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
Note: For the purposes of this Chapter, the term “fees” includes, for Bangladesh, reimbursable cost, transportation cost, and overhead, profit, Value Added Tax (VAT) and Advanced Income Tax (AIT).
(ii) where the procurement provides for the possibility of options, the total value of such options.
5. Where an individual requirement for a procurement results in the award of more than one contract, or in the award of contracts in separate parts (hereinafter referred to in this Chapter as “recurring contracts”), the calculation of the estimated maximum total value shall be based on:
(a) the value of recurring contracts of the same type of good or service awarded during the preceding 12 months or the procuring entity’s preceding fiscal year, adjusted, where possible, to take into account anticipated changes in the quantity or value of the good or service being procured over the following 12 months; or
(b) the estimated value of recurring contracts of the same type of good or service to be awarded during the 12 months following the initial contract award or the procuring entity’s fiscal year.
Article 11.4. Security and General Exceptions
1. Notwithstanding paragraph 3 of Article 1.5, nothing in this Chapter shall be construed to prevent a Party from taking any action or not disclosing any information that it considers necessary for the protection of its essential security interests relating to the procurement of arms, ammunition or war materials, or to procurement indispensable for national security or for national defense purposes.
2. 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 or a disguised restriction on trade between the Parties, nothing in this Chapter shall be construed to prevent either Party from imposing or enforcing 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.
Article 11.5. General Principles
Non-Discrimination
1. With respect to any measure regarding covered procurement, each Party, including its procuring entities, shall accord immediately and unconditionally 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 favorable than that the former Party, including its procuring entities, accords to domestic goods, services and suppliers.
2. With respect to any measure regarding covered procurement, neither Party, including its procuring entities, shall:
(a) treat a locally established supplier less favorably than another locally established supplier on the basis of the 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 Means
3. 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.
Conduct of Procurement
4. 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.
Rules of Origin
5. For the purpose of covered procurement, neither Party shall apply rules of origin to goods or services that are different from the rules of origin the Party applies in the normal course of trade to those goods or services.
Offsets
6. With regard to covered procurement, neither Party, including its procuring entities, shall seek, take account of, impose or enforce any offset.
Measures Not Specific to 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 levying such duties and charges; other import regulations or formalities and measures affecting trade in services other than measures governing covered procurement.
Article 11.6. Information on the Procurement System
1. Each Party shall:
(a) promptly publish any law, regulation, judicial decision, administrative ruling of general application, standard contract clause mandated by law or regulation and incorporated by reference in notices or tender documentation and procedure regarding covered procurement, and any modifications thereof, in an officially designated electronic or paper medium that is widely disseminated and remains readily accessible to the public;
(b) provide an explanation thereof to the other Party, on request; and
(c) endeavor to make the information referred to in subparagraph (a) available in the English language.
2. Each Party shall, in Annex 8, list the electronic or paper media in which the Party publishes the following:
(a) the information described in subparagraph 1(a); and
(b) the notices required by Article 11.7, paragraph 7 of Article 11.9 and paragraph 2 of Article 11.15.
3. Each Party shall promptly notify the other Party of any modification to the Party’s information listed in Annex 8.
Article 11.7. Notices
Notice of Intended Procurement
1. For each covered procurement, a procuring entity shall publish a notice of intended procurement in the appropriate paper or electronic medium listed in Annex 8, except in the circumstances described in Article 11.13. Such medium shall be widely disseminated and such notices shall remain readily accessible to the public, at least until expiration of the time-period indicated in the notice. The notices shall:
(a) for procuring entities covered under Section 1 of each Party’s List in Annex 8, be accessible by electronic means free of charge through a single point of access, for at least any minimum period of time specified in that Annex; and
(b) for procuring entities covered under Section 2 or 3 of each Party’s List in Annex 8, where accessible by electronic means, be provided, at least, through links in a gateway electronic site that is accessible free of charge.
The Parties, including its procuring entities covered under Section 2 or 3 of each Party’s List in Annex 8, are encouraged to publish their notices by electronic means free of charge through a single point of access.