Information Provided to Suppliers
1. A procuring entity shall promptly inform participating suppliers of the procuring entity’s contract award decisions and, on request of a supplier, shall do so in writing. Subject to paragraphs 2 and 3 of Article 11.16, a procuring entity shall, on request, provide an unsuccessful supplier with an explanation of the reasons why the procuring entity did not select its tender.
Publication of Award Information
2. No later than 72 days after the award of each contract covered by this Chapter, a procuring entity shall publish a notice in the appropriate paper or electronic medium listed in Annex 8. Where the procuring entity publishes the notice only in an electronic medium, the information shall remain readily accessible for a reasonable period of time. The notice shall include at least the following information:
(a) a description of the goods or services procured;
(b) the name and address of the procuring entity;
(c) the name and address of the successful supplier;
(d) the value of the successful tender or the highest and lowest offers taken into account in the award of the contract;
(e) the date of award; and
(f) the type of procurement method used, and in cases where limited tendering was used in accordance with Article 11.13, a description of the circumstances justifying the use of limited tendering.
Maintenance of Documentation, Reports and Electronic Traceability
3. Each procuring entity shall, for a period of time specified in each Party’s government procurement law and regulations, maintain:
(a) the documentation and reports of tendering procedures and contract awards relating to covered procurement, including the reports required under Article 11.13; and
(b) data that ensure the appropriate traceability of the conduct of covered procurement by electronic means.
Article 11.16. Disclosure of Information
Provision of Information to the other Party
1. Each Party shall, on request of the other Party, provide promptly any information necessary to determine whether a procurement was conducted fairly, impartially and in accordance with this Chapter, including information on the characteristics and relative advantages of the successful tender. In cases where release of the information would prejudice competition in future tenders, 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, neither Party, including its procuring entities, shall provide to any particular supplier information that might prejudice fair competition between suppliers.
3. Nothing in this Chapter shall be construed to require either Party, including its procuring entities, authorities and review bodies, to disclose confidential information where 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; or
(d) would otherwise be contrary to the public interest.
Article 11.17. Domestic Review Procedures
1. Each Party shall provide a timely, effective, transparent and non-discriminatory administrative or judicial review procedure through which a supplier may challenge:
(a) a breach of this Chapter; or
(b) where the supplier does not have a right to challenge directly a breach of this Chapter under the domestic law of the Party, a failure to comply with the Party’s measures implementing this Chapter,
arising in the context of a covered procurement, in which the supplier has, or has had, an interest. The procedural rules for all challenges shall be in writing and made publicly available.
2. In the event of a complaint by a supplier, arising in the context of a covered procurement in which the supplier has, or has had, an interest, that there has been a breach or a failure referred to in paragraph 1, the Party of the procuring entity conducting the procurement shall encourage the procuring entity and the supplier to seek resolution of the complaint through consultations. The procuring entity shall accord impartial and timely consideration to any such complaint in a manner that is not prejudicial to the supplier’s participation in ongoing or future procurements or its right to seek corrective measures under the administrative or judicial review procedure in accordance with the laws and regulations of each Party.
3. Each supplier shall be allowed a sufficient period of time to prepare and submit a challenge, which in no case shall be less than 10 days from the time when the basis of the challenge became known or reasonably should have become known to the supplier.
4. Each Party shall establish or designate at least one impartial administrative or judicial authority or review panel that is independent of its procuring entities to receive and review a challenge by a supplier arising in the context of a covered procurement.
5. Where a body other than an authority referred to in paragraph 4 initially reviews a challenge, the Party shall ensure that the supplier may appeal the initial decision to an impartial administrative or judicial authority or review panel that is independent of the procuring entity whose procurement is the subject of the challenge.
6. Each Party shall ensure that a review body or review panel that is not a court shall have its decision subject to judicial review or have procedures that provide that:
(a) the procuring entity shall respond in writing to the challenge and disclose all relevant documents to the review body or review panel;
(b) the participants to the proceedings (hereinafter referred to in this paragraph as “participants”) shall have the right to be heard prior to a decision of the review body or review panel being made on the challenge;
(c) the participants shall have the right to be represented and accompanied;
(d) the participants shall have access to all proceedings;
(e) the participants shall have the right to request that the proceedings take place in public and that witnesses may be presented; and
(f) the review body or review panel shall make its decisions or recommendations in a timely manner, in writing, and shall include an explanation of the basis for each decision or recommendation.
7. Each Party shall adopt or maintain procedures that provide for:
(a) rapid interim measures to preserve the supplier’s opportunity to participate in the procurement. Such interim measures may result in suspension of the procurement process. The procedures may provide that overriding adverse consequences for the interests concerned, including the public interest, may be taken into account when deciding whether such measures should be applied. Just cause for not acting shall be provided in writing; and
(b) where a review body or review panel has determined that there has been a breach or a failure referred to in paragraph 1, correction of breaches of this Chapter or compensation for the loss or damages suffered, which may be limited to either the costs for the preparation of the tender or for the costs relating to the challenge, or both.
Article 11.18. Modifications and Rectifications to Coverage
1. Each Party shall notify the other Party of its rectifications or, in exceptional cases, other modifications relating to Annex 8 along with the information as to the likely consequences of the change for the mutually agreed coverage provided for in this Chapter. If the rectifications or other modifications are of a purely formal or minor nature, notwithstanding Article 22.3, they shall become effective provided that no objection from the other Party has been raised within 30 days. In other cases, the Parties shall consult the proposal and any claim for compensatory adjustments with a view to maintaining a balance of rights and obligations and a comparable level of mutually agreed coverage provided for in this Chapter prior to such rectification or other modification. In the event of an agreement between the Parties not being reached, the Party which has received such notification may have recourse to the dispute settlement procedure under Chapter 21.
2. Notwithstanding any other provision of this Chapter, each Party may undertake reorganizations of its procuring entities, including programs through which the procurement of such entities is decentralized or the corresponding government functions cease to be performed by any government entity, whether or not subject to this Chapter. In cases of reorganizations, compensation need not be proposed. Neither Party shall undertake such reorganizations to avoid the obligations under this Chapter.
Article 11.19. Privatization of Procuring Entities
When government control over a procuring entity specified in Annex 8 has been effectively eliminated, notwithstanding that the government may possess holding thereof or appoint members of the board of directors thereto, this Chapter shall no longer apply to that entity and compensation need not be proposed. A Party shall notify the other Party of the name of such entity before elimination of government control or as soon as possible thereafter.
Article 11.20. Denial of Benefits
1. A Party may deny the benefits of this Chapter to a juridical person of the other Party if the juridical person is owned or controlled by persons of a non-Party, and the former Party:
(a) does not maintain diplomatic relations with the non-Party; or
(b) adopts or maintains measures with respect to the non-Party that prohibit transactions with the juridical person or that would be violated or circumvented if the benefits of this Chapter were accorded to the juridical person.
2. Subject to prior notification and consultation, a Party may deny the benefits of this Chapter to a supplier of the other Party that is a juridical person of the other Party if the former Party establishes that the juridical person is owned or controlled by persons of a non-Party and the juridical person has no substantial business activities in the Area of the other Party.
Article 11.21. Further Negotiation
1. In the event that, after entry into force of this Agreement, either Party offers a non-Party additional advantages of access to its government procurement market beyond what the other Party has been provided with under this Chapter, the former Party shall, upon request of the other Party, enter into negotiations with the other Party with a view to extending those advantages to the other Party on a reciprocal basis.
2. The Parties shall enter into negotiations to review this Chapter with a view to achieving a comprehensive Chapter on Government Procurement, when Bangladesh expresses its intention to become a party to the Agreement on Government Procurement in Annex 4 to the WTO Agreement (hereinafter referred to in this paragraph as “the GPA”).
Note: If the GPA is amended or is superseded by another agreement, “the GPA”, for the purposes of this paragraph, shall refer to the GPA as amended or such other agreement.
Article 11.22. Sub-Committee on Government Procurement
1. For the purpose of the effective implementation and operation of this Chapter, the Parties hereby establish a Sub-Committee on Government Procurement (hereinafter referred to in this Article as “the Sub-Committee”).
2. The functions of the Sub-Committee shall be:
(a) reviewing and monitoring the implementation and operation of this Chapter;
(b) analyzing available information on each Party’s government procurement market;
(c) evaluating the effective access of suppliers of a Party to government procurement market of the other Party;
(d) reporting the findings of the Sub-Committee to the Joint Committee; and
(e) carrying out other functions as may be delegated by the Joint Committee.
3. The Sub-Committee shall be composed of representatives of the Governments of the Parties.
4. The Sub-Committee shall hold meetings at such times and venues or by means, as may be decided by the Parties.
Chapter 12. Intellectual Property
Section 1. General Provisions and Basic Principles
Article 12.1. General Provisions
1. The Parties shall ensure adequate, effective and non-discriminatory protection of intellectual property in accordance with the provisions of this Chapter and the international agreements related to intellectual property to which both Parties are parties.
2. The Parties shall also promote efficiency and transparency in the administration of the intellectual property system.
3. Nothing in this Chapter shall derogate from existing rights and obligations that the Parties have under the TRIPS Agreement or other international agreements related to intellectual property to which both Parties are parties.
4. The Parties shall be free to determine the appropriate method of implementing the provisions of this Chapter within their own legal system and practice.
Article 12.2. Scope of Intellectual Property
For the purposes of this Chapter, the term “intellectual property” means copyright and related rights, trademarks, geographical indications, industrial designs, patents, protection of plant varieties, layout-designs (topographies) of integrated circuits and protection of undisclosed information, as referred to in Sections 1 through 7 of Part II of the TRIPS Agreement.
Note: Without prejudice to Article 12.1, this Article shall apply only to Article 12.3 with respect to layout-designs (topographies) of integrated circuits.
Article 12.3. National Treatment and Most-Favored-Nation Treatment
1. Each Party shall accord to nationals of the other Party treatment no less favorable than that it accords to its own nationals with regard to the protection of intellectual property in accordance with Articles 3 and 5 of the TRIPS Agreement.
2. Each Party shall accord to nationals of the other Party treatment no less favorable than that it accords to the nationals of a non-Party with regard to the protection of intellectual property in accordance with Articles 4 and 5 of the TRIPS Agreement.
3. For the purposes of this Article:
(a) the term “nationals” shall have the same meaning as in the TRIPS Agreement; and
(b) the term “protection” shall include matters affecting the availability, acquisition, scope, maintenance and enforcement of intellectual property rights as well as those matters affecting the use of intellectual property rights specifically addressed in this Chapter.
Article 12.4. Multilateral Agreements
1. Each Party affirms that it has ratified or acceded to the following multilateral agreements:
(a) the Paris Convention for the Protection of Industrial Property, done at Paris on March 20, 1883, as revised at Stockholm on July 14, 1967 and amended on September 28, 1979 (hereinafter referred to in this Chapter as the “Paris Convention”); and
(b) the Berne Convention for the Protection of Literary and Artistic Works, done at Berne on September 9, 1886, as revised at Paris on July 24, 1971 and amended on September 28, 1979.
2. Each Party shall ratify or accede to the following multilateral agreements to which it is not yet a party:
(a) the Patent Cooperation Treaty, done at Washington on June 19, 1970, as amended on September 28, 1979 and modified on February 3, 1984 and October 3, 2001 (hereinafter referred to in this Chapter as the “PCT”); and
(b) the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks, adopted at Madrid on June 27, 1989, as amended on October 3, 2006 and November 12, 2007 (hereinafter referred to in this Chapter as the “Madrid Protocol”).
3. Each Party shall endeavor to ratify or accede to the following multilateral agreements to which it is not yet a party:
(a) the 1991 Act of the International Convention for the Protection of New Varieties of Plants, as revised at Geneva on March 19, 1991;
(b) the WIPO Copyright Treaty, adopted at Geneva on December 20, 1996; and
(c) the WIPO Performances and Phonograms Treaty, adopted at Geneva on December 20, 1996.
Article 12.5. Improvement of Procedures for the Administration of Intellectual Property Rights
The Parties recognize the importance of providing efficient administration of the intellectual property system, and in this regard each Party shall continue to review and endeavor, where appropriate, to make improvements to its procedures for the administration of intellectual property rights.
Article 12.6. Transparency
1. Each Party shall endeavor to make available on the Internet its laws, regulations and procedures of general application concerning the protection and enforcement of intellectual property rights.
2. Each Party shall endeavor to make available on the Internet its examination guidelines for patents, utility models, industrial designs and trademarks, if such guidelines exist.
Article 12.7. Promotion of Public Awareness Concerning Protection of Intellectual Property
The Parties shall endeavor to take necessary measures to enhance public awareness of protection of intellectual property, such as educational and dissemination projects on the use of intellectual property as well as on the enforcement of intellectual property rights, including in the digital environment.
Article 12.8. Exhaustion of Intellectual Property Rights
Each Party shall be free to establish its own regime for exhaustion of intellectual property rights.
Article 12.9. Intellectual Property and Public Health
1. The Parties reaffirm the Doha Declaration on the TRIPS Agreement and Public Health, adopted on November 14, 2001. In particular, the Parties have reached the following understandings regarding this Chapter:
(a) the Parties affirm the right to fully use the flexibilities as duly recognized in the Doha Declaration on the TRIPS Agreement and Public Health;
(b) the Parties agree that this Chapter does not and should not prevent either Party from taking measures to protect public health; and
(c) the Parties affirm that this Chapter can and should 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.
2. In recognition of the Parties’ commitments to access to medicines and public health, this Chapter does not and should not prevent the effective utilization of Article 31bis of the TRIPS Agreement, and the Annex and Appendix to the Annex to the TRIPS Agreement.
3. The Parties recognize the importance of contributing to the international efforts to implement Article 31bis of the TRIPS Agreement, and the Annex and Appendix to the Annex to the TRIPS Agreement.
Article 12.10. 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 12.11. Principles
1. Each 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 and the TRIPS Agreement.
2. Appropriate measures, provided that they are consistent with the provisions of this Chapter and the TRIPS Agreement, 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.
Section 2. Copyright and Related Rights
Article 12.12. Exclusive Rights of Authors, Performers and Producers of Phonograms
1. Each Party shall provide to authors of works the exclusive right to authorize any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.
2. Each Party shall provide to performers and producers of phonograms the exclusive right to authorize the making available to the public of their performances fixed in phonograms and phonograms, respectively, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them.
3. Each Party shall provide to authors, performers and producers of phonograms the exclusive right to authorize or prohibit the reproduction of their works, performances fixed in phonograms and phonograms in any manner or form.
Article 12.13. Protection of Broadcasting Organizations
Each Party shall provide to broadcasting organizations the right to prohibit the following acts when undertaken without their consent:
(a) the rebroadcasting of their broadcasts;
(b) the fixation of their broadcasts; and
(c) the reproduction of fixations of their broadcasts.
Article 12.14. Collective Management Organizations
1. Each Party shall endeavor to ensure that its collective management organizations for copyright and related rights are encouraged to:
(a) operate to collect and distribute revenues to their members in a manner that is fair, efficient, transparent and accountable; and
(b) adopt open and transparent record keeping of the collection and distribution of revenues.
2. Each Party shall endeavor to take appropriate measures to facilitate the activities to be conducted by its collective management organizations for copyright and related rights.
Section 3. Trademarks
Article 12.15. Protection of Trademarks
Any sign, or any combination of signs, capable of distinguishing the goods or services of one undertaking from those of other undertakings, shall be capable of constituting a trademark. Such signs, in particular words including personal names, letters, numerals, figurative elements and combinations of colors as well as any combination of such signs, shall be eligible for registration as trademarks. Where signs are not inherently capable of distinguishing the relevant goods or services, each Party may make registrability depend on distinctiveness acquired through use. Each Party may require, as a condition of registration, that signs be visually perceptible.
Article 12.16. Protection of Collective Marks and Certification Marks
Each Party shall provide for the protection of trademarks including collective marks and certification marks. Neither Party is obligated to treat certification marks as a separate category in its laws and regulations, provided that those marks are protected.
Article 12.17. Trademark Classification
Each Party shall use a trademark classification of goods and services in accordance with the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks, done at Nice on June 15, 1957, as amended from time to time.
Article 12.18. Rights Conferred
Each Party shall provide that the owner of a registered trademark shall have the exclusive right to prevent all third parties not having the owner’s consent from using in the course of trade identical or similar signs for goods or services which are identical or similar to those in respect of which the trademark is registered where such use would result in a likelihood of confusion. In case of the use of an identical sign for identical goods or services, a likelihood of confusion shall be presumed. The rights described above shall not prejudice any existing prior rights, nor shall they affect the possibility of either Party making rights available on the basis of use.
2. Article 6bis of the Paris Convention shall apply, mutatis mutandis, to services. In determining whether a trademark is well-known, each Party shall take account of the knowledge of the trademark in the relevant sector of the public, including knowledge in the Party concerned which has been obtained as a result of the promotion of the trademark.
3. Article 6bis of the Paris Convention shall apply, mutatis mutandis, to goods or services which are not similar to those in respect of which a trademark is registered, provided that the use of that trademark in relation to those goods or services would indicate a connection between those goods or services and the owner of the registered trademark and provided that the interests of the owner of the registered trademark are likely to be damaged by such use.
4. Neither Party shall require, as a condition for determining that a trademark is a well-known trademark, that the trademark has been registered in that Party or in another jurisdiction or included on a list of well-known trademarks.
Article 12.19. Exceptions
Each Party may provide for limited exceptions to the rights conferred by a trademark, such as fair use of descriptive terms, provided that such exceptions take account of the legitimate interests of the owner of the trademark and of third parties.
Article 12.20. Protection of Trademarks That Predate Geographical Indications
Each Party shall protect trademarks where they predate, in its jurisdiction, geographical indications, in accordance with paragraph 5 of Article 24 of the TRIPS Agreement.
Article 12.21. Bad Faith Trademarks
Each Party shall endeavor to take necessary measures to refuse a trademark application if it was made in bad faith, in accordance with its laws and regulations.
Article 12.22. Procedural Aspects of Examination and Registration for Trademarks
Each Party shall endeavor to provide a system for the registration of trademarks, which shall include: