Article 11.13. Tender Documentation
1. A procuring entity shall promptly make available or provide on request to any interested supplier tender documentation that includes all information necessary to permit the supplier to prepare and submit a responsive tender.
2. Unless already provided in the notice of intended procurement, that tender documentation shall include a complete description of:
(a) the procurement, including the nature, scope and, if known, the quantity of the good or service to be procured or, if the quantity is not known, the estimated quantity and any requirements to be fulfilled, including any technical specifications, conformity certification, plans, drawings, or instructional materials;
(b) any conditions for participation, including any financial guarantees, information, and documents that suppliers are required to submit;
(c) all criteria to be considered in the awarding of the contract and the relative importance of those criteria;
(d) if there will be a public opening of tenders, the date, time, and place for the opening;
(e) any other terms or conditions relevant to the evaluation of tender; and
(f) any date for delivery of a good or supply of a service.
3. To the extent possible an entity should make relevant tender documentation publicly available through electronic means or a computer-based telecommunications network openly accessible to all suppliers.
4. In establishing any date for the delivery of a good or the supply of a service being procured, a procuring entity shall take into account factors such as the complexity of the procurement.
5. A procuring entity shall promptly reply to any reasonable request for relevant information by an interested or participating supplier, provided that the information does not give that supplier an advantage over other suppliers.
Modifications
6. If, prior to the award of a contract, a procuring entity modifies the evaluation criteria or requirements set out in a notice of intended procurement or tender documentation provided to participating suppliers, or amends, or re-issues a notice or tender documentation, it shall publish or provide those modifications, or the amended or re-issued notice or tender documentation:
(a) to all suppliers that are participating in the procurement at the time of the modification, amendment, or re-issuance, if those suppliers are known to the procuring entity, and in all other cases, in the same manner as the original information was made available; and
(b) inadequate time to allow those suppliers to modify and re-submit their initial tender, if appropriate.
Article 11.14. Time Periods
1. A procuring entity shall, consistent with its own reasonable needs, provide sufficient time for a supplier to obtain the tender documentation and to prepare and submit request for participation and a responsive tender, taking into account factors such as:
(a) the nature and complexity of the procurement;
(b) the extent of subcontracting anticipated; and
(c) whether tenders can be received by electronic means.
2. The time periods for procurement in each Party shall be in accordance with Section I of Annex 11A (Government Procurement Coverage).
Article 11.15. 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. If the tender of a supplier is received after the time specified for receiving tenders, the procuring entity shall not penalize that supplier if the delay is due solely to the mishandling on the part of the procuring entity.
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 an award, a tender shall be submitted in writing and shall, at the time of opening, comply with the essential requirements set out in the notice and tender documentation and be submitted by a supplier who satisfies the conditions for participation.
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 fulfilling the terms of the contract and that, based solely on the evaluation criteria specified in the notice and tender documentation, submits:
(a) the most advantageous tender; or
(b) if price is the sole criterion, the lowest price.
6. Consistent with the terms of this Chapter, a procuring entity may require a supplier to comply with general terms and conditions pursuant to the terms of the contract.
7. If a procuring entity received a tender with a price that is abnormally lower than the prices in other tenders submitted, it may verify with the supplier that it satisfies the conditions for participation and is capable of fulfilling the terms of the contract.
8. A procuring entity shall not use options, cancel a procurement, or modify or terminate awarded contracts in order to avoid the obligations of this Chapter, unless the procuring entity gives justifications.
Article 11.16. Transparency and Post-Award Information
Information Provided to Suppliers
1. A procuring entity shall promptly inform suppliers that have submitted a tender of the contract award decision. The procuring entity may do so in writing, or through the prompt publication of the notice in paragraph, provided that the notice includes the date of award. If a supplier has requested the information in writing, the procuring entity shall provide it in writing.
2. Subject to Article 11.17, a procuring entity shall, on request, provide an unsuccessful supplier with an explanation of the reasons why the procuring entity did not select the unsuccessful supplier's tender or an explanation of the relative advantages of the successful supplier's tender if the supplier requested.
Maintenance of Records
3. A procuring entity shall maintain the documentation, records and reports relating to tendering procedures and contract awards for procurement, including the records and reports provided for in Article 11.10.
Article 11.17. Disclosure of Information
Provision of Information to Parties
1. On request of the other Party, a Party may exchange information to demonstrate whether a procurement was conducted in accordance with this Chapter.
Non-Disclosure of Information
2. Notwithstanding any other provision of this Chapter, a Party, including its procuring entities, shall not, except to the extent required by law or with the written authorization of the supplier that provided the information, disclose information that would prejudice legitimate commercial interests of a particular supplier or that might prejudice fair competition between suppliers.
3. Nothing in this Chapter shall be construed to require a Party, including its procuring entities, authorities, and review bodies, to disclose confidential information if that 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 11.18. Ensuring Integrity In Procurement Practices
Each Party shall ensure that criminal or administrative measures exist to address corruption in its government procurement. These measures may include procedures to render ineligible for participation in the Party's procurements, either indefinitely or for a stated period of time, suppliers that the Party has determined to have engaged in fraudulent or other illegal actions in relation to government procurement in the Party's territory. Each Party shall also ensure that it has in place policies and procedures to eliminate to the extent possible or manage any potential conflict of interest on the part of those engaged in or having influence over a procurement.
Article 11.19. Domestic Review
1. Each Party shall maintain, establish, or designate at least one impartial administrative or judicial authority (review authority) that is independent of its procuring entities to review, in a non-discriminatory, timely, transparent, and effective manner, a challenge or complaint (complaint) by a supplier that there has been:
(a) a breach of this Chapter; or
(b) if the supplier does not have a right to directly challenge a breach of this Chapter under the law of a Party, a failure of a procuring entity to comply with the Party's measures implementing this Chapter, arising in the context of a procurement, in which the supplier has, or had, an interest. The procedural rules for these complaints shall be in writing and made generally available.
2. In the event of a complaint by a supplier, arising in the context of procurement in which the supplier has, or had, an interest, that there has been a breach or a failure as referred to in paragraph 1, the Party of the procuring entity conducting the procurement shall encourage, if appropriate, the procuring entity and the supplier to seek resolution of the complaint through consultations. The procuring entity shall accord impartial and timely consideration to the complaint in a manner that is not prejudicial to the supplier's participation in ongoing or future procurement or to its right to seek corrective measures under the administrative or judicial review procedure. Each Party shall make information on its complaint mechanisms generally available.
3. If a body other than the review authority initially reviews a complaint, a Party shall ensure that the supplier may appeal the initial decision to the review authority that is independent of the procuring entity that is the subject of the complaint.
4. If the review authority has determined that there has been a breach or a failure as referred to in paragraph 1, a Party may limit compensation for the loss or damages suffered to either the costs reasonably incurred in the preparation of the tender or in bringing the complaint, or both.
5. Each Party shall ensure that, if the review authority is not a court, its review procedures are conducted in accordance with the following procedures:
(a) a supplier shall be allowed sufficient time to prepare and submit a complaint in writing, based on laws and regulations of both parties from the time when the basis of the complaint became known or reasonably should have become known to the supplier;
(b) a procuring entity shall respond in writing to a supplierâs complaint and provide all relevant documents to the review authority;
(c) a supplier that initiates a complaint shall be provided an opportunity to reply to the procuring entity's response before the review authority takes a decision on the complaint; and
(d) the review authority shall provide its decision on a supplier's complaint in a timely manner, in writing, with an explanation of the basis for the decision.
6. Each Party shall adopt or maintain procedures that provide for:
(a) prompt interim measures, pending the resolution of a complaint, to preserve the supplier's opportunity to participate in the procurement and to ensure that the procuring entities of the Party comply with its measures implementing this Chapter; and
(b) corrective action that may include compensation under paragraph 4.
The procedures may provide that overriding adverse consequences for the interests concerned, including the public interest, may be taken into account when deciding whether those measures should be applied. Just cause for not acting shall be provided in writing.
Article 11.20. Facilitation of Participation by SMEs
1. The Parties recognize the important contribution that SMEs can make to economic growth and employment and the importance of facilitating and promoting the participation of SMEs in government procurement.
2. If a Party maintains a measure that provides preferential treatment for SMEs, the Party shall ensure that the measure, including the criteria for eligibility, is transparent.
3. To facilitate participation by SMEs in procurement, each Party shall, to the extent possible and if appropriate:
(a) provide comprehensive procurement-related information that includes a definition of SMEs in a single electronic portal;
(b) endeavour to make all tender documentation available free of charge;
(c) conduct procurement by electronic means or through other new information and communication technologies; and
(d) consider the size, design, and structure of the procurement, including the use of subcontracting by SMEs.
Article 11.21. Financial Obligations
1. This Chapter does not entail any financial obligations to the Parties.
2. Each Party is responsible for any financial expenses to fulfil their role in this Chapter.
Article 11.22. Language
To improve market access to each Partyâs procurement market, each Party shall, where possible, use English in its publication of materials or information pursuant to Article 11.6.
Article 11.23. Annex
The following annex forms an integral part of this Chapter:
(a) Annex 11A (Government Procurement Coverage).
Chapter 12. INTELLECTUAL PROPERTY
Section A. General Provisions
Article 12.1. Definition
For the purposes of this Chapter:
intellectual property embodies:
(a) copyright, including copyright in computer programs and in databases, and related rights;
(b) patents and utility models;
(c) trademarks;
(d) industrial designs;
(e) layout-designs (topographies) of integrated circuits;
(f) geographical indications;
(g) plant varieties; and
(h) protection of undisclosed information.
national means, in respect of the relevant right, a person of a Party that would meet the criteria for eligibility for protection provided for in the agreements listed in Article 12.5 or the TRIPS Agreement.
Article 12.2. Objectives
The protection and enforcement of intellectual property rights should contribute to the promotion of trade, investment, technological innovation and creativity by providing certainty for the right holders and users of intellectual property rights and facilitating the enforcement of intellectual property rights to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge in a manner conducive to social and economic welfare, and to maintain a balance of rights and obligations between the legitimate interest of the right holders and the public at large.
Article 12.3. Principles
Nothing in this Chapter shall prevent a Party from adopting appropriate measures to prevent the abuse of intellectual property rights by right holders or the resort to practices that unreasonably restrain trade or adversely affect the international transfer of technology provided that such measures are consistent with this Agreement.
Article 12.4. Nature and Scope of Obligations
Each Party shall give effect to the provisions of this Chapter. A Party may, but shall not be obliged to, provide more extensive protection for, or enforcement of, intellectual property rights under its law than is required by this Chapter, provided that such protection or enforcement does not contravene the provisions of this Chapter. Each Party shall be free to determine the appropriate method of implementing the provisions of this Chapter within its own legal system and practice.
Article 12.5. International Agreements
1. The Parties reaffirm their rights and obligations with respect to each other under the TRIPS Agreement and any other agreements relating to intellectual property to which they are parties. To this end, nothing in this Chapter shall derogate from the existing rights and obligations that Parties have to each other under the TRIPS Agreement or the following multilateral agreements:
(a) Patent Cooperation Treaty of 19 June 1970, as revised by the Washington Act of 2001;
(b) Paris Convention of 20 March 1883 for the Protection of Industrial Property, as revised by the Stockholm Act of 1967;
(c) Berne Convention of 9 September 1886 for the Protection of Literary and Artistic Works, as revised by the Paris Act of 1971;
(d) WIPO Performances and Phonogram Treaty of 20 December 1996 (WPPT);
(e) International Rome Convention of 26 October 1961 for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations;
(f) WIPO Copyright Treaty of 20 December 1996 (WCT);
(g) Budapest Treaty of 28 April 1977 on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure; and
(i) Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled.
2. Each Party shall endeavour to ratify or accede to each of the following agreements, if itis not already a party to that agreement:
(a) International Convention for the Protection of New Varieties of Plants (UPOV) 1991.
(b) Madrid Protocol of 27 June 1989 relating to the Madrid Agreement concerning the International Registration of Marks; and
(c) Beijing Treaty for Audiovisual Performances.
Article 12.6. Intellectual Property and Public Health
1. A Party may, in formulating or amending its laws and regulations, adopt measures necessary to protect public health and nutrition, and make use of exceptions and flexibilities 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.
2. The Parties recognise the principles established in the Declaration on the TRIPS Agreement and Public Health adopted on 14 November 2001 (hereinafter referred to as the "Doha Declaration") by the Ministerial Conference of the WTO and confirm that the provisions of this Chapter are without prejudice to the Doha Declaration.
Article 12.7. National Treatment
1. In respect of all categories of intellectual property covered in this Chapter, each Party shall accord to nationals of another Party treatment no less favourable than it accords to its own nationals with regard to the protection of intellectual property rights in accordance with Article 3(1) of TRIPS.
2. A Party may derogate from paragraph 1 in relation to its judicial and administrative procedures, including requiring a national of another Party to designate an address for service of process in its territory, or to appoint an agent in its territory, provided that such derogation is:
(a) necessary to secure compliance with laws or regulations that are not inconsistent with this Chapter; and
(b) not applied in a manner that would constitute a disguised restriction on trade.
3. Paragraph 1 does not apply to procedures provided in multilateral agreements concluded under the auspices of WIPO relating to the acquisition or maintenance of intellectual property rights.
Article 12.8. Transparency
1. Each Party shall endeavour, subject to its legal system and practice, to make information concerning application and registration of trademarks, geographical indications, industrial designs, patents and plant variety rights accessible for the general public.
2. The Parties also acknowledge the importance of informational materials, such as publicly accessible databases of registered intellectual property rights that assist in the identification of subject matter that has fallen into the public domain.
3. Each Party might make its best effort availing such information in English language.
Article 12.9. Application of Chapter to Existing Subject Matter and Prior Acts
1. Unless otherwise provided in this Chapter, this Chapter gives rise to obligations in respect of all subject matter existing at the date of entry into force of this Agreement for a Party and that is protected on that date in the territory of a Party where protection is claimed, or that meets or comes subsequently to meet the criteria for protection under this Chapter without unreasonably impairing the fair interest of the third parties.
2. Unless provided in this Chapter, a Party shall not be required to restore protection to subject matter that on the date of entry into force of this Agreement for that Party has fallen into the public domain in its territory.
Article 12.10. Exhaustion of Intellectual Property Rights
Without prejudice to any provisions addressing the exhaustion of intellectual property rights in international agreements to which a Party is a member, nothing in this Agreement prevents a Party from determining whether or under what conditions the exhaustion of intellectual property rights applies under its legal system.
Section B. Cooperation
Article 12.11. Cooperation Activities and Initiatives
The Parties shall endeavour to cooperate on the subject matter covered by this Chapter, such as through appropriate coordination, training, and exchange of information between the respective intellectual property offices of the Parties, or other institutions, as determined by each Party. Cooperation activities and initiatives undertaken under this Chapter shall be subject to the availability of resources, and on request, and on terms and conditions mutually agreed upon between the Parties. Cooperation may cover areas such as:
(a) developments in domestic and international intellectual property policy; patent examination quality and efficiency;
(b) intellectual property administration and registration systems;
(c) education and awareness relating to intellectual property;
(d) intellectual property issues relevant to:
(i) small and medium-sized enterprises;
(ii) science, technology and innovation activities;
(iii) the generation, transfer and dissemination of technology; and (iv) empowering women and youth;
(f) policies involving the use of intellectual property for research, innovation and economic growth;
(g) implementation of multilateral intellectual property agreements, such as those concluded or administered under the auspices of WIPO;
(h) capacity-building;