(k) in contracts with professionals or entities considered, in their field of action, of notorious specialization, derived from the security and confidence derived from previous performance, studies, experience, publications, organization, equipment, technical personnel or other requirements related to their activities, which allow inferring that their work is essentially and indisputably the most adequate for the full satisfaction of the contract, provided that it is reasonably estimated that there are no other suppliers that provide such security and confidence.
5. Procuring entities shall prepare written reports, maintain records or issue administrative acts, all of a public nature, for each procurement contract awarded in accordance with paragraph 4. Such reports, records or administrative acts shall include the name of the procuring entity, the value and nature of the goods or services procured and an indication of the circumstances and conditions justifying the use of procedures other than open or selective tendering.
Article 12.13. Treatment of Bids and Award of Contracts
1. Procuring entities shall receive and open all bids under procedures that ensure equality and fairness among the Parties' suppliers in the procurement process.
The bidders shall be given confidential treatment, at least until the opening of the bids.
2. The contracting entities may, in accordance with their national legislation, declare deserted or reject all bids when appropriate and well-founded.
3. Procuring entities shall require that bids, in order to be considered for award, must:
(a) comply with the requirements of the bidding documents, and
(b) be submitted by a supplier that has satisfied the conditions for participation, which the procuring entity has provided to all participating suppliers.
4. Unless a procuring entity determines that awarding a procurement contract is against the public interest, it shall award the contract to the supplier that the procuring entity has determined to be fully capable of performing the contract and whose bid has been determined to be the most advantageous in terms of the requirements and evaluation criteria set forth in the bidding documents.
5. Procuring entities may not cancel a procurement procedure, nor terminate or modify awarded contracts, for the purpose of evading the obligations of this Chapter.
Article 12.14. Transparency of Procurement Information
1. The Parties shall ensure that their procuring entities provide effective disclosure of the results of public procurement processes.
2. Procuring entities shall make available to all suppliers all information relating to the procurement procedure and, in particular, the grounds for the award and the characteristics relating to the successful bid.
3. After awarding a contract covered by this Chapter, a procuring entity shall promptly publish at least the following information about the award:
(a) the name of the contracting entity;
(b) the description of the goods or services contracted;
(c) the date of the award;
(d) the name of the winning supplier, and
(e) the value of the awarded contract.
4. Procuring entities shall publish this information in the national official journal or other national official publication easily accessible to suppliers and the other Party. The Parties shall endeavor to make this information available to the public through electronic means.
5. Upon request, procuring entities shall provide suppliers whose bid was not selected for award with the reasons for not selecting their bid.
6. Procuring entities may withhold information on the award of the contract in accordance with the national legislation of the respective procuring entity.
Article 12.15. Disclosure of Information
1. Upon request, a Party shall promptly provide any information necessary to determine whether a procurement was conducted fairly, impartially and in accordance with the rules of this Chapter, including information on the characteristics and relative advantages of the favored supplier. In cases where disclosure of the information may prejudice competition in ongoing or future tenders, the Party receiving the information shall not disclose it to any supplier, except with the consent of the other Party.
2. Except as otherwise provided in this Chapter, a Party, including its procuring entities, shall not provide any particular information to any supplier that may prejudice competition between suppliers.
3. Nothing in this Chapter shall be construed to require a Party to disseminate confidential information whose disclosure:
(a) prevent compliance with the law;
(b) competition among suppliers;
(c) prejudice the legitimate commercial interests of private persons, including the protection of intellectual property, or
(d) is contrary to the public interest.
Article 12.16. Internal Review Procedures
1. Each Party shall have a timely, effective, transparent and non-discriminatory administrative or judicial review procedure, in accordance with the principle of due process, through which a supplier may submit challenges related to a covered procurement in which the supplier has an interest, alleging a breach of this Chapter.
2. Each Party shall have at least one impartial administrative or judicial authority, independent of its contracting entities, to receive and review the challenges referred to in paragraph 1, and to make appropriate findings and recommendations.
3. Each Party shall ensure that the supplier may appeal the initial decision to an impartial administrative or judicial authority independent of the procuring entity that is the subject of the challenge when a supplier's challenge is initially reviewed by an authority other than those referred to in paragraph 2.
4. Each Party shall provide that the authority established or designated in accordance with paragraph 2 shall have the authority to take, without delay, provisional measures to preserve the opportunity for the supplier to participate in the procurement and to ensure that the Party complies with this Chapter. Such measures may have the effect of suspending the procurement proceedings.
5. Without prejudice to other challenge procedures provided or developed by each Party, each Party shall ensure that the authority established or designated pursuant to paragraph 2 provides at least the following:
(a) a sufficient time period for the supplier to prepare and submit written challenges, which in no case shall be less than ten (10) days from the time the act or omission giving rise to the challenge became known to the supplier or reasonably should have become known to the supplier, and
(b) the delivery, without delay and in writing, of the decisions related to the challenge, with an explanation of the grounds for each decision.
Article 12.17. Modifications and Rectifications of Coverage
1. Where a Party modifies its coverage of government procurement in accordance with this Chapter, that Party:
(a) notify the other Party in writing, and
(b) shall include in the notification a proposal for appropriate compensatory adjustments to the other Party to maintain a level of coverage comparable to that existing prior to the modification.
2. Notwithstanding paragraph 1(b), a Party need not grant compensatory adjustments where:
(a) the modification in question is a minor modification or a rectification of a purely formal nature, or
(b) the proposed amendment covers a contracting entity over which the Party has effectively eliminated its control or influence.
3. If the other Party does not agree that:
(a) the adjustment proposed in paragraph 1(b) is adequate to maintain a level comparable to the mutually agreed coverage;
(b) the proposed amendment is a minor amendment or a correction pursuant to paragraph 2(a), or
(c) the proposed amendment covers a contracting entity over which the Party has effectively eliminated its control or influence in accordance with paragraph 2(b);
4 The other Party shall object in writing within thirty (30) days from the date of receipt of the notification referred to in paragraph 1, failing which it shall be deemed to have 4 objected.
reached agreement on the proposed adjustment or modification, including for purposes of the dispute settlement mechanism of Chapter 22 (Dispute Settlement).
5. When the Parties reach agreement on the proposed modification, rectification or amendment, including when a Party has not objected within thirty (30) days pursuant to paragraph 4, the Parties shall amend Annex I accordingly.
Article 12.18. Participation of MSMEs
1. The Parties recognize the important contribution that MSMEs can make to economic growth and employment, and the importance of facilitating their participation in public procurement.
2. The Parties also recognize the importance of business alliances between suppliers of the Parties and in particular MSMEs, including joint participation in procurement procedures.
3. Where a Party maintains measures offering preferential treatment for its MSMEs, it shall ensure that such measures, including eligibility criteria, are objective and transparent.
4. The Parties may:
(a) provide information regarding their measures used to assist, promote, encourage or facilitate the participation of MSMEs in public procurement, and
(b) cooperate in the development of mechanisms to provide information to MSMEs on the means to participate in public procurement covered by this Chapter.
5. To facilitate the participation of MSMEs in covered procurement, each Party shall, to the extent possible:
(a) provide information related to public procurement, including definition of MSMEs in an electronic portal;
(b) ensure that procurement documents are available free of charge;
(c) identify MSMEs interested in becoming business partners of other enterprises in the territory of the other Party;
(d) develop databases on MSMEs in its territory for use by contracting entities of the other Party; and
(e) carry out other activities aimed at facilitating the participation of MSMEs in public procurements covered by this Chapter.
Article 12.19. Cooperation
1. The Parties recognize the importance of cooperation as a way to achieve better understanding of their respective government procurement systems, as well as better access to their respective markets, particularly for micro, small and medium-sized suppliers.
2. The Parties shall make their best efforts to cooperate on issues such as:
(a) the exchange of experiences and information, such as regulatory frameworks, best practices and statistics;
(b) the development and use of electronic means of information in public procurement systems;
(c) training and technical assistance to suppliers on access to the public procurement market, and
(d) institutional strengthening for the implementation of the provisions of this Chapter, including the training or education of public officials.
Article 12.20. Joint Committee on Procurement
1. The Parties hereby establish the Joint Committee on Government Procurement (hereinafter referred to as the "Joint Committee"), composed of:
(a) in the case of Brazil, by the Secretary of International Affairs of the Ministry of Planning, Development and Management, or his successor, or the person designated by him, and by the Director of the Department of Regional Economic Integration of the Ministry of Foreign Affairs, or his successor, or the person designated by him, and
(b) in the case of Chile, by the Director General of International Economic Relations, or by his successor, or by the person designated by him.
2. The Joint Committee, without prejudice to Article 21.2 (Functions of the Commission):
(a) shall ensure compliance with and correct application of the provisions of this Chapter;
(b) supervise the implementation of this Chapter and evaluate the results achieved in its application, in aspects such as:
(i) the exchange of statistics and other information to assist the Parties in monitoring the implementation and operation of this Chapter;
(ii) the use of the opportunities offered by increased access to public procurement and recommend appropriate activities to the Parties; and
(iii) the efforts of the Parties to increase understanding of their respective government procurement systems, with a view to increasing to the maximum extent possible the use of their respective procurement systems.
access to government procurement opportunities for small business suppliers. To this end, either Party may request from the other Party technical assistance, including training of interested government employees or suppliers in specific elements of each Party's government procurement system.
(c) shall meet, at the request of a Party, to consider proposed measures that it considers may affect compliance with this Chapter or cause nullification or impairment within a period of no more than twenty (20) days from the date of the request, with a view to clarifying the matter. The requesting Party shall deliver the request in writing and shall state the reasons for the request, including identification of the measure at issue and an identification of the legal and factual basis for the request that will permit a proper assessment of the matter;
(d) shall conduct the technical consultations referred to in Article 12.21;
(e) evaluate and follow up on the cooperative activities carried out by the Parties in accordance with this Chapter;
(f) shall consider additional negotiations for the purpose of expanding the coverage of this Chapter at the request of either Party;
(g) monitor the further development of this Chapter; and
(h) consider any matter that may affect the operation of this Chapter.
3. The Joint Committee may:
(a) seek the advice of non-governmental individuals or groups, and
(b) if agreed by the Parties, take any other action in the exercise of its functions.
4. The Joint Committee may establish its own rules of procedure.
5. Communications between the Parties regarding this Chapter shall be carried out through the following focal points:
(a) in the case of Brazil, the Department of Regional Economic Integration of the Ministry of External Relations and the Secretariat of International Affairs of the Ministry of Planning, Development and Management or their successors, and
(b) in the case of Chile, the Directorate of Bilateral Economic Affairs of the Directorate General of International Economic Relations, or its successor.
6. Any changes in the focal points will be communicated through diplomatic channels.
7. The Joint Committee shall meet at least once during the first year of this Agreement and thereafter at the request of either Party at any time, unless the Parties agree otherwise. Sessions of the Joint Committee may be held in person if the Parties so agree in the territory of one of the Parties, or by use of any
technological means agreed upon by the Parties. The sessions of the Joint Committee shall be chaired alternately by each Party.
Article 12.21. Technical Consultation
1. The Joint Committee shall conduct technical consultations received from the other Party on the application or interpretation of this Chapter. For these purposes, it shall meet as provided in Article 12.20.7.
2. The requesting Party shall state in its request the reasons for the consultation, and identify the subject matter of the consultation.
3. The Joint Committee shall meet within thirty (30) days of receipt of the request for consultations, or such other period as the Parties may agree.
4. The technical consultations shall be confidential. The Parties shall provide sufficient information to allow a complete analysis of the subject matter of the consultation, and shall make every effort to ensure that, at the request of one of them, specialized personnel with competence in the subject matter participate in the technical consultations.
Article 12.22. Future Negotiations
At the request of either Party, the Parties shall enter into negotiations with a view to extending the coverage of this Chapter on a reciprocal basis, where the other Party grants suppliers of a non-Party, through an international treaty to be concluded after the entry into force of this Agreement, greater access to its government procurement market than that granted to suppliers of the other Party pursuant to this Chapter.
Chapter 13. Competition Policy
Article 13.1. Definitions
For the purposes of this Chapter:
enforcement proceedings means judicial or administrative proceedings following an investigation into an alleged violation of competition laws, and
competition advocacy means those actions, other than competition law enforcement actions, undertaken by the competition authority or authorities, to promote competition as defined under the Party's competition laws.
Article 13.2. Objectives
Recognizing that anti-competitive business practices have the potential to distort the proper functioning of markets and undermine the benefits of trade liberalization, the Parties shall seek to adopt appropriate measures to prohibit such conduct, implement policies promoting competition and cooperate on matters covered by this Chapter to help secure the benefits of this Agreement.
Article 13.3. Competition Law and Authorities and Anticompetitive Business Practices
1. Each Party shall adopt or maintain competition laws that prohibit anticompetitive business practices, with the objective of fostering competition to promote economic efficiency and consumer welfare, and shall take appropriate action with respect to such practices.
2. Each Party shall ensure that the measures it adopts or maintains to prohibit anticompetitive business practices, and the enforcement actions it takes pursuant to those measures, are consistent with the principles of transparency, non-discrimination and due process.
3. Each Party shall endeavor to apply its competition laws to all commercial activities in its territory. This does not preclude a Party from applying its competition laws to commercial activities outside its borders that have anticompetitive effects within its jurisdiction.
4. Each Party may provide for certain exemptions and exclusions from the application of its competition laws, provided that such exemptions and exclusions are transparent and based on public policy or public interest grounds.
5. Each Party shall maintain an authority or authorities responsible for the enforcement or promotion of its competition laws (hereinafter referred to as "competition authorities").
6. Each Party shall ensure that its competition authority or authorities apply or promote its competition laws in accordance with the objectives set out in this Chapter, and shall not discriminate on the basis of nationality.
7. Each Party shall ensure the independence in decision-making of its competition authority or authorities in relation to the application of its competition laws.
Article 13.4. Procedural Fairness In the Application of the Competition Law
1. Each Party shall adopt or maintain written procedures pursuant to which investigations relating to its competition laws shall be conducted. If such investigations are not time-bound, the competition authorities of each Party shall endeavor to conduct their investigations within a reasonable period of time.
2. Each Party shall ensure that, before imposing a sanction or remedial measures against a person for violating its competition laws, that person is given information about the competition concerns of the competition authority, including identification of the alleged violations of specific competition laws and the associated potential maximum sanctions, if not publicly available, and a reasonable opportunity to be represented by counsel.
3. Each Party shall ensure that, before imposing a sanction or remedial measures against a person for violating its competition laws, the person is given a reasonable opportunity to be heard and to present evidence, except that provision may be made for the person to be heard and to present evidence within a reasonable time after an interim sanction or remedial measure is imposed.
4. Each Party shall provide a person who is subject to the imposition of a sanction or remedial measure for violation of its competition laws with an opportunity to seek review of the sanction or remedial measure in a court or other independent tribunal established under that Party's legal system.
5. Each Party shall adopt or maintain rules of procedure and evidence that apply to enforcement proceedings regarding alleged violations of its competition laws and the determination of penalties and remedies thereunder. These rules shall include procedures for the presentation of evidence, including expert evidence if applicable, and shall apply equally to all persons in the proceeding.
6. If a Party's competition authority alleges a violation of its competition laws, that authority shall be responsible for establishing the legal and factual basis for the alleged violation in an enforcement proceeding. Nothing in this paragraph shall preclude a Party from requiring that a person against whom the allegation is made be responsible for establishing certain elements in defense of the allegation.
7. Each Party shall provide for the protection of confidential information obtained by its competition authorities during the investigation process. If a Party's competition authority uses or intends to use such information in an enforcement proceeding, that Party shall, if permissible under its legal system and as appropriate, allow the person subject to investigation timely access to the information necessary to prepare an adequate defense to the competition authority's allegations.
8. Each Party shall ensure that its competition authorities afford the person under investigation for the alleged violation of its competition laws a reasonable opportunity to consult with such competition authorities on legal, factual or procedural matters arising in the course of the investigation.
Article 13.5. Cooperation
1. The Parties recognize the importance of cooperation and coordination between their respective competition authorities to promote the effective enforcement of competition laws and the promotion of competition between the Parties.
2. The Parties agree to cooperate, as appropriate, on competition policy strategies, including through exchanges of joint actions.
3. The Parties agree to cooperate in a manner consistent with their respective legal systems and interests, including through consultation and exchange of information and in consideration of available resources.
4. The competition authorities of a Party may consider entering into a cooperation arrangement or agreement with the competition authorities of the other Party that sets forth mutually agreed terms of cooperation.
Article 13.6. Technical Cooperation
Recognizing that the Parties can benefit from sharing their diverse experiences in developing, promoting, implementing and enforcing competition law, the Parties will consider carrying out mutually agreed technical cooperation activities, subject to available resources.
Article 13.7. Transparency
1. The Parties recognise the value of developing their implementation policies in the field of competition and promotion of competition in a transparent manner.
2. Each Party shall ensure that its competition laws and public guidelines are publicly available, including on an official website. This excludes operating procedures unless disclosure is required by the Parties' legal systems.
3. At the request of a Party, the other Party shall make available to it the public information related to:
(a) Its policies and actions to promote competition;
(b) Its policies and practices for the enforcement of its competition laws; and
(c) Exemptions and exclusions from its competition laws, provided that the application specify the particular good or service and the market concerned and include information explaining how the exemption or exclusion may impede the trade or investment between the Parties.
4. Each Party shall ensure that the final determination of a violation of its competition law is made available in writing and provides, in non-criminal matters, for the determinations of fact and reasoning, including legal analysis and, if applicable, the economic, on which the decision is based.
5. Each Party shall further ensure that the final decision referred to in paragraph 4 and any order implementing that decision is publicly available, or if publication is not practicable, otherwise available to the public, in a manner that enables interested persons and the other Party to become acquainted with it. Each Party shall ensure that the published or publicly available version of the decision or order does not contain confidential information in a manner consistent with its respective legal system.
Article 13.8. Consulations
For the purpose of promoting understanding between the Parties, or addressing specific issues arising under this Chapter, consultations shall be held at the request of a Party. Such request shall indicate, if relevant, how the matter affects trade or investment between the Parties. The Party to which the request is addressed shall consider with understanding the concerns of the Party applicant.