(c) for additional deliveries by the original supplier of a good or service that was not included in the initial procurement, a change of supplier for that additional good or service:
(i) cannot be made for economic or technical reasons, such as requirements of interchangeability or interoperability with existing equipment, software, services or installations procured under the initial procurement, and
(ii) would cause significant inconvenience or substantial duplication of costs to the procuring entity;
(d) the good is purchased on a commodity market;
(e) a procuring entity procures a prototype or a first good or service that is developed at its request in the course of, and for, a particular contract for research, experiment, study or original development; original development of a first good or service may include limited production or supply in order to incorporate the results of field testing and to demonstrate that the good or service is suitable for production or supply in quantity to acceptable quality standards, but does not include quantity production, or supply to establish commercial viability, or to recover research and development costs;
(f) insofar as is strictly necessary, for reasons of extreme urgency brought about by events unforeseeable by the procuring entity, the good or service could not be obtained in time using open tendering or selective tendering;
(g) a contract is awarded to a winner of a design contest provided that:
(i) the contest has been organized in a manner that is consistent with the principles of this Chapter, in particular relating to the publication of a notice of intended procurement, and
(ii) the participants are judged by an independent jury with a view to a design contract being awarded to a winner;
(h) a procuring entity needs to procure a consulting service regarding matters of a confidential nature, the disclosure of which could reasonably be expected to compromise government confidences, cause economic disruption or similarly be contrary to the public interest; and
(i) an additional construction service that was not included in the initial contract but that is within the objectives of the original tender documentation has become necessary, due to unforeseeable circumstances, to complete the construction service described in the original tender documentation; however the total value of all contracts awarded for additional services may not exceed 50% of the total amount of the initial contract.
2. A procuring entity shall prepare a report in writing on each contract awarded under paragraph 1. The report shall include the name of the procuring entity, the value and kind of good or service procured, and a statement indicating the circumstances and conditions described in paragraph 1 that justified the use of limited tendering.
Article 16.11. 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. A procuring entity shall treat tenders in confidence until at least the opening of the tenders.
3. If a procuring entity provides a supplier with an opportunity to correct unintentional errors of form between the opening of tenders and the awarding of the contract, the procuring entity shall provide the same opportunity to all participating suppliers.
Awarding of Contracts
4. To be considered for award, a tender must be submitted in writing by a supplier that satisfies the conditions for participation and must, at the time of opening, comply with the essential requirements of the notices and tender documentation.
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 undertaking the contract and, based solely on the evaluation criteria specified in the notices and tender documentation, has submitted:
(a) the most advantageous tender; or
(b) where price is the sole criterion, the lowest price.
6. A procuring entity shall not use options, cancel a procurement or modify awarded contracts in a manner that circumvents the obligations in this Chapter.
Information Provided to Suppliers
7. A procuring entity shall promptly inform suppliers participating in the procurement of the entity's contract award decisions and, on request, shall do so in writing. Subject to Article 16.12, 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 and the relative advantages of the successful supplier's tender.
Publication of Award Information
8. Within 72 days of an award, a procuring entity shall publish in electronic or paper form in an officially designated publication, a notice including the following information about the contract:
(a) the name and address of the procuring entity;
(b) a description of the goods or services procured;
(c) the date of award;
(d) the name and address of the successful supplier;
(e) the contract value; and
(f) the procurement method used and, when a procedure has been used pursuant to Article 16.10(1), a description of the circumstances justifying the use of that procedure.
Maintenance of Records
9. A procuring entity shall maintain reports and records of tendering procedures relating to procurements covered by this Chapter, including the reports provided for in Article 16.10(2), and shall retain such reports and records for a period of at least 3 yearsafter the award of a contract.
Article 16.12. Disclosure of Information
Provision of Information to a Party
1. On request of the other Party, a Party shall promptly provide 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 that information shall not disclose it to a supplier without the consent 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, may not provide information to a particular supplier that might prejudice fair competition between suppliers.
3. A Party, including its procuring entities, administrative authorities and judicial authorities, is not required under this Chapter to release confidential information if the release:
(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 16.13. Domestic Review Procedures
1. For the purposes of this Article, "challenge" means a challenge by a supplier arising in the context of a procurement covered by this Chapter in which the supplier has, or has had, an interest.
2. Each Party shall ensure that its procuring entities give impartial and timely consideration to a complaint from a supplier regarding an alleged breach of measures implementing this Chapter arising in the context of a procurement covered by this Chapter in which the supplier has, or has had, an interest. Each Party shall encourage suppliers to seek clarification from its procuring entities through discussions with a view to facilitating the resolution of a complaint.
3. Each Party shall establish or designate at least one impartial administrative or judicial authority that is independent of its procuring entities to receive and review a challenge.
4. Each Party shall ensure that an authority it establishes or designates under paragraph 3 has written procedures that are generally available. Each Party shall ensure that those procedures are timely, effective, transparent, non-discriminatory and provide that:
(a) the procuring entity shall respond in writing to the challenge and disclose all relevant documents to the review body;
(b) the participants in the challenge have:
(i) the right to be heard prior to the review body making a decision on the challenge,
(ii) the right to be represented and accompanied,
(iii) access to all challenge proceedings, and
(iv) the right to request that the proceedings take place in public and that witnesses may be presented;
(c) a decision or recommendation relating to a challenge be provided in a timely manner, in writing and with an explanation of the basis for the decision or recommendation; and
(d) each supplier be allowed a sufficient period of time to prepare and submit a challenge, which must be at least 10 days from the time when the basis of the challenge became known to the supplier or reasonably should have become known to the supplier.
5. Each Party shall provide that an authority it establishes or designates under paragraph 3 has authority to take interim measures to preserve the supplier's opportunity to participate in the procurement. Those interim measures may result in a suspension of the procurement process. The procedures for taking interim measures 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.
6. Each Party shall ensure that a supplier's submission of a challenge will not prejudice the supplierâs participation in ongoing or future procurements.
7. If a body other than an authority referred to in paragraph 2 initially reviews a challenge, the Party shall ensure that the supplier may appeal the initial decision to an impartial administrative or judicial authority that is independent of the procuring entity whose procurement is the subject of the challenge.
Article 16.14. Modifications and Rectifications to Coverage
1. A Party may modify an Annex to this Chapter.
2. When a Party modifies an Annex to this Chapter, the Party shall:
(a) notify the other Party in writing; and
(b) include in the notification a proposal of appropriate compensatory adjustments to the other Party to maintain a level of coverage comparable to that existing prior to the modification.
3. Notwithstanding paragraph 2(b), a Party need not provide compensatory adjustments if:
(a) the modification in question is a minor adjustment or rectification of a purely formal nature; or
(b) the proposed modification covers an entity over which the Party has effectively eliminated its control or influence.
4. If the other Party disputes that:
(a) an adjustment proposed under paragraph 2(b) is adequate to maintain a comparable level of mutually decided coverage,
(b) the proposed modification is a minor adjustment or a rectification under paragraph 3(a), or
(c) the proposed modification covers an entity over which the Party has effectively eliminated its control or influence under paragraph 3(b),
it shall object in writing within 30 days of receipt of the notification referred to in paragraph 1 or be deemed to have accepted the adjustment or proposed modification, including for the purposes of Chapter Twenty-Two (Dispute Settlement).
Article 16.15. Committee on Procurement
The Parties hereby establish a Committee on Procurement to address matters related to the implementation of this Chapter with a view to maximizing access to government procurement, including with respect to facilitating participation by small and medium enterprises in the government procurement market of the other Party.
Article 16.16. Further Negotiations
1. If, after the entry into force of the provisions of this Chapter, a Party enters into another international agreement containing different procurement procedures and ptactices, including the introduction of shorter bid periods, a Party shall, if the other Party so requests, enter into negotiations to harmonize this Chapter with that international agreement.
2. If, after the entry into force of the provisions of this Chapter, a Party enters into another international agreement providing greater access to its procurement market than is provided under this Chapter, including with respect to sub-national government procurement, on the request of either Party, the Parties may decide to enter into negotiations with a view to achieving a level of market access under this Chapter equivalent to that of the other international agreement.
Article 16.17. Information Technology
The Parties, to the extent possible, shall endeavour to use electronic means of communication to efficiently disseminate information on government procurement, particularly regarding tender opportunities offered by procuring entities, while respecting the principles of transparency and non-discrimination.
Chapter Seventeen. ENVIRONMENT
Article 17.01. Affirmations
1. The Parties recognize that each Party has sovereign rights and responsibilities to conserve and protect its environment, and affirm their environmental obligations under their domestic law, as well as their international obligations under multilateral environmental agreements.
2. The Parties recognize the mutual supportiveness between trade and environment policies and the need to implement this Agreement in a manner consistent with environmental protection and conservation and the sustainable use of their resources.
Article 17.02. Agreement on the Environment
In keeping with the spirit of Article 17.01, the Parties have set out their mutual obligations in the Agreement on the Environment to promote the following objectives:
(a) conservation, protection and improvement of the environment in the territory of each Party for the well-being of present and future generations;
(b) a commitment not to derogate from domestic environmental laws in order to encourage trade or investment;
(c) conservation and sustainable use of biological diversity, and protection and preservation of traditional knowledge;
(d) development of, compliance with and enforcement of environmental laws;
(e) transparency and public participation in environmental matters; and
(f) cooperation between the Parties to advance environmental issues of common interest.
Article 17.03. Relationship between this Agreement and the Agreement on the Environment
1. The Parties recognize the importance of balancing trade obligations and environmental obligations, and affirm that the Agreement on the Environment complements this Agreement and that they are mutually supportive.
2. The Commission may consider, as appropriate, reports and recommendations from the Committee on the Environment established under the Agreement on the Environment, in respect of any issues related to trade and the environment.
Chapter Eighteen. LABOUR
Article 18.01. Affirmations
The Parties affirm their obligations as members of the International Labour Organization (ILO) and their commitments to the ILO Declaration on Fundamental Principles and Rights at Work (1998) and its follow-up as well as their continuing respect for each other's Constitution and laws.
Article 18.02. Objectives
The Parties wish to build on their respective international commitments, strengthen their cooperation on labour matters and in particular to:
(a) improve working conditions and living standards in each Party's territory;
(b) promote their commitment to the internationally recognized labour principles and rights;
(c) promote compliance with and effective enforcement by each Party of its labour law;
(d) promote social dialogue on labour matters among workers and employers, and their respective organizations, and governments;
(e) pursue cooperative labour-related activities for the Parties' mutual benefit;
(f) strengthen the capacity of each Party's competent authorities to administer and enforce labour law in its territory; and
(g) foster full and open exchange of information between these competent authorities regarding labour law and its application in each Party's territory.
Article 18.03. Obligations
In order to further the objectives, the Parties' mutual obligations are set out in the Agreement on Labour Cooperation between Canada and the Republic of Panama ("Agreement on Labour Cooperation") addressing, among other things:
(a) general obligations concerning internationally recognized labour principles and rights that are to be embodied in each Party's domestic labour law;
(b) a commitment not to derogate from domestic labour law in order to encourage trade or investment;
(c) effective enforcement of labour laws through appropriate government action, private rights of action, procedural guarantees, public information and awareness;
(d) institutional mechanisms to oversee the implementation of the Agreement on Labour Cooperation, such as a Ministerial Council, national advisory committees and national offices to receive and review public communications on specified labour law matters and to enable cooperative activities to further the objectives of the Agreement on Labour Cooperation;
(e) general and ministerial consultations regarding the implementation of the Agreement on Labour Cooperation and its obligations; and
(f) independent review panels to hold hearings and make determinations regarding alleged non-compliance with the terms of the Agreement on Labour Cooperation and, if requested, monetary assessments.
Article 18.04. Cooperative Activities
The Parties recognize that labour cooperation plays an important role in advancing the level of compliance with labour principles and rights and as such the Agreement on Labour Cooperation provides for the development of a plan of action for cooperative labour activities to promote the objectives of the Agreement on Labour Cooperation. An indicative list of areas of possible cooperation between the Parties is set out in the Agreement on Labour Cooperation.
Chapter Nineteen. TRADE-RELATED COOPERATION
Article 19.01. Objectives
Recognizing that trade-related cooperation is a catalyst for the reforms and investments necessary to foster trade-driven economic growth and adjustment to liberalized trade, the Parties agree to promote trade-related cooperation, with the following objectives:
(a) strengthening the capacities of the Parties to maximize the opportunities and benefits deriving from this Agreement;
(b) strengthening and developing cooperation at a bilateral, regional or multilateral level;
(c) fostering, in areas of mutual interest relating to science and technology and innovation, new trade and investment opportunities, thereby stimulating competitiveness and encouraging innovation, including dialogue and cooperation among their respective: academies of science; governmental organizations; non-governmental organizations; universities; colleges; centers and institutes for science, research and technology; and private sector enterprises or firms; and
(d) promoting sustainable economic development, with an emphasis on small and medium-sized enterprises.
Article 19.02. Contact Points
1. The Parties hereby establish Contact Points to facilitate communication concerning the interpretation and implementation of this Chapter.
2. Each Contact Point may share with the other an action plan outlining possible areas of trade-related cooperation to maximize the opportunities and benefits deriving from this Agreement.
3. The Contact Points shall work jointly to establish guidelines for conducting their work and coordinate with other contact points and committees established under this Agreement, as required, on trade-related cooperation pursuant to the objectives of this Chapter.
4. The Contact Points shall be responsible for ensuring communication with the relevant national institutions, as necessary, to carry out the objectives under this Chapter.
5. The Contact Points may communicate by electronic mail, video-conferencing or any other means decided on by the Parties.
6. The Contact Points are as follows:
(a) For Panama:
Ministry of Trade and Industry
National Directorate for the Administration of International Trade Treaties and Trade Defence
or its successor;
(b) For Canada:
Department of Foreign Affairs and International Trade Regional Trade Policy - Americas
or its successor.
Chapter Twenty. TRANSPARENCY
Section A. Publication, Notification and Administration of Laws
Article 20.01. Definitions
For Purposes of this Section:
administrative ruling of general application means an administrative ruling or interpretation applying to persons and situations of fact falling within the general scope of that ruling or interpretation and establishing a norm of conduct, but does not include:
(a) a determination or ruling made in an administrative or quasi-judicial proceeding that applies to a particular person, good or service of the other Party in a specific case; or
(b) a ruling that adjudicates with respect to a particular act or practice.
Article 20.02. Publication
1. Each Party shall ensure that its laws, regulations, procedures and administrative rulings of general application respecting a matter covered by this Agreement are promptly published or made available in such a manner as to enable interested persons and the other Party to become acquainted with them.
2. To the extent possible, each Party shall:
(a) publish in advance any such measure that it proposes to adopt; and