(d) any conditions that suppliers must fulfil to participate in the procurement;
(e) time-limits for submission of tenders and, where appropriate, other time limits;
(f) main criteria to be used for award of the contract; and
(g) if possible, terms of payment and any other terms.
Notice of planned procurement
4. Each Party shall encourage its entities to publish as early as possible in each fiscal year, a notice of planned procurement containing information regarding entities' future procurement plans. Such notice should include the subject matter of the procurement and the planned date of the publication of the notice of intended procurement.
5. Entities operating in the utilities sector may use a notice of planned procurement as a notice of intended procurement, under the condition that such notice contains as much of the information referred to in paragraph 3 as is available, and that it explicitly invites interested suppliers to express their interest in the procurement to the entity.
6. Entities having used a notice of planned procurement as a notice of intended procurement shall subsequently communicate to all suppliers who have expressed an initial interest further information that shall include, at least, the information referred to in paragraph 3 and ask them to confirm their interest on that basis.
Notice regarding permanent lists of qualified suppliers
7. Entities which intend to maintain permanent lists shall, consistently with paragraph 2, publish a notice which shall identify the entity, and indicate the purpose of the permanent list and the availability of the rules concerning its operation, including criteria for qualification and disqualification, as well as its duration.
8. Where the permanent list is of a duration greater than three years, the notice shall be published annually.
9. Entities operating in the utilities sector may use a notice on the existence of permanent lists of qualified suppliers as a notice of intended procurement. In that case, they shall provide, in a timely manner, information which allows all those who have expressed an interest to assess their interest in participating in the procurement. This information shall include the information contained in the notice referred to in paragraph 3, to the extent that such information is available. Information provided to one interested supplier shall be provided in a non-discriminatory manner to the other interested suppliers. Common provisions
10. Each notice referred to in this Article shall be accessible during the entire time period established for tendering for the relevant procurement.
11. Entities shall publish the notices in a timely manner through means which offer the widest possible and non-discriminatory access to the interested suppliers of the Parties. These means shall be accessible free of charge through a single point of access specified in Annex XIII, Appendix 2.
Article 148. Tender Documentation
1. Tender documentation provided to suppliers shall contain all information necessary to permit them to submit responsive tenders.
2. Where contracting entities do not offer free direct access to the entire tender documents and any supporting documents by electronic means, entities shall make promptly available the tender documentation at the request of any supplier of the Parties.
3. Entities shall promptly reply to any reasonable request for relevant information relating to the intended procurement, on condition that such information does not give that supplier an advantage over its competitors.
Article 149. Technical Specifications
1. Technical specifications shall be set out in the notices, tender documents or additional documents.
2. Each Party shall ensure that its entities do not prepare, adopt or apply any technical specifications with a view to, or with the effect of, creating unnecessary barriers to trade between the Parties.
3. Technical specifications prescribed by entities shall
(a) be in terms of performance and functional requirements rather than design or descriptive characteristics; and
(b) be based on international standards, where these exist or, in their absence, on national technical regulations (12), recognised national standards (13), or building codes.
4. The provisions of paragraph 3 do not apply when the entity can objectively demonstrate that the use of technical specifications referred to in that paragraph would be ineffective or inappropriate for the fulfilment of the legitimate objectives pursued.
5. In all cases, entities shall consider bids which do not comply with the technical specifications but meet the essential requirements thereof and are fit for the purpose intended. The reference to technical specifications in the tender documents must include words such as "or equivalent".
6. There shall be no requirement for or reference to a particular trademark or trade name, patent, design or type, specific origin, producer or supplier, unless there is no other sufficiently precise or intelligible way of describing the procurement requirements and provided that words, such as "or equivalent", are included in the tender documentation.
7. The tenderer shall have the burden of proving that his bid meets the essential requirements.
Article 150. Time-limits
1. All time-limits established by the entities for the receipt of tenders and requests to participate shall be adequate to allow suppliers of the other Party, as well as domestic suppliers, to prepare and to submit tenders, and where appropriate, requests for participation or applications for qualifying. In determining any such time-limit, entities shall, consistent with their own reasonable needs, take into account such factors as the complexity of the intended procurement and the normal time for transmitting tenders from foreign as well as domestic points.
2. Each Party shall ensure that its entities shall take due account of publication delays when setting the final date for receipt of tenders or of request for participation or for qualifying for the supplier's list.
3. The minimum time-limits for the receipt of tenders are specified in Annex XIII, Appendix 3.
Article 151. Negotiations
1. A Party may provide for its entities to conduct negotiations:
(a) in the context of procurements in which they have indicated such intent in the notice of intended procurement; or
(b) when it appears from evaluation that no one tender is obviously the most advantageous in terms of the specific evaluation criteria set forth in the notices or tender documentation.
2. Negotiations shall primarily be used to identify the strengths and weaknesses in tenders.
3. Entities shall not, in the course of negotiations, discriminate between tenderers. In particular, they shall ensure that:
(a) any elimination of participants is carried out in accordance with the criteria set forth in the notices and tender documentation;
(b) all modifications to the criteria and to the technical requirements are transmitted in writing to all remaining participants in the negotiations;
(c) on the basis of the revised requirements and/or when negotiations are concluded, all remaining participants are afforded an opportunity to submit new or amended tenders in accordance with a common deadline.
Article 152. Submission, Receipt and Opening of Tenders
1. Tenders and requests to participate in procedures shall be submitted in writing.
2. Entities shall receive and open bids from tenderers under procedures and conditions guaranteeing the respect of the principles of transparency and non-discrimination.
Article 153. Awarding of Contracts
1. To be considered for award, a tender must, at the time of opening, conform to the essential requirements of the notices or tender documentation and be submitted by a supplier which complies with the conditions for participation.
2. Entities shall make the award to the tenderer whose tender is either the lowest tender or the tender which, in terms of the specific objective evaluation criteria previously set forth in the notices or tender documentation, is determined to be the most advantageous.
Article 154. Information on Contract Award
1. Each Party shall ensure that its entities provide for effective dissemination of the results of government procurement processes.
2. Entities shall promptly inform tenderers of decisions regarding the award of the contract and of the characteristics and relative advantages of the selected tender. Upon request, entities shall inform any eliminated tenderer of the reasons for the rejection of its tender.
3. Entities may decide to withhold certain information on the contract award where release of such information would prevent law enforcement or otherwise be contrary to the public interest, would prejudice the legitimate commercial interests of suppliers, or might prejudice fair competition between them.
Article 155. Bid Challenges
1. Entities shall accord impartial and timely consideration to any complaints from suppliers regarding an alleged breach of this Title in the context of a procurement procedure.
2. Each Party shall provide non-discriminatory, timely, transparent and effective procedures enabling suppliers to challenge alleged breaches of this Title arising in the context of procurements in which they have, or have had, an interest.
3. Challenges shall be heard by an impartial and independent reviewing authority. A reviewing authority which is not a court shall either be subject to judicial review or shall have procedural guarantees similar to those of a court.
4. Challenge procedures shall provide for:
(a) rapid interim measures to correct breaches of this Title and to preserve commercial opportunities. Such action may result in suspension of the procurement process. However, procedures may provide that overriding adverse consequences for the interests concerned, including the public interest, may be taken into account in deciding whether such measures should be applied; and
(b) if appropriate, correction of the breach of this Title or, in the absence of such correction, compensation for the loss or damages suffered, which may be limited to costs for tender preparation and protest.
Article 156. Information Technology
1. The Parties shall, to the extent possible, endeavour to use electronic means of communication to permit efficient dissemination of information on government procurement, particularly as regards tender opportunities offered by entities, while respecting the principles of transparency and non-discrimination.
2. With a view to improving access to government procurement markets, each Party shall endeavour to implement an electronic information system, which is compulsory for their respective entities.
3. The Parties shall encourage the use of electronic means for the transmission of offers.
Article 157. Cooperation and Assistance
The Parties shall endeavour to provide each other with technical cooperation and assistance through the development of training programs with a view to achieving a better understanding of their respective government procurement systems and statistics and better access to their respective markets.
Article 158. Statistical Reports
Where a Party does not ensure an acceptable level of compliance with Article 147(11), it shall, upon request of the other Party,Acollect and provide to the other Party on an annual basis statistics on its procurements covered by this Title. Such reports shall contain the information established in Annex XIII, Appendix 4.
Article 159. Modifications to Coverage
1. A Party may modify its coverage under this Title, provided that it:
(a) notifies the other Party of the modification; and
(b) provides the other Party, within 30 days following the date of such notification, appropriate compensatory adjustments to its coverage in order to maintain a level of coverage comparable to that existing prior to the modification.
2. Notwithstanding paragraph 1(b), no compensatory adjustments shall be provided to the other Party where the modification by a Party of its coverage under this Title concerns:
(a) rectifications of a purely formal nature and minor amendments to Annexes XI and XII;
(b) one or more covered entities on which government control or influence has been effectively eliminated as a result of privatisation or liberalisation.
3. Where appropriate, the Association Committee shall by decision modify the relevant Annex to reflect the modification notified by the Party concerned.
Article 160. Further Negotiations
If either Party should offer in the future a third party additional advantages with regard to access to their respective procurement markets beyond what has been agreed under this Title, it shall agree to enter into negotiations with the other Party with a view to extending these advantages to it on a reciprocal basis by means of a decision of the Association Committee.
Article 161. Exceptions
Provided that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between the Parties or a disguised restriction on trade between them, nothing in this Title shall be construed to prevent any Party from adopting or maintaining measures:
(a) necessary to protect public morals, order or safety;
(b) necessary to protect human life, health or security;
(c) necessary to protect animal or plant life or health;
(d) necessary to protect intellectual property; or
(e) relating to goods or services of handicapped persons, of philanthropic institutions or of prison labour.
Article 162. Review and Implementation
The Association Committee shall review the implementation of this Title every two years, unless otherwise agreed by the Parties; it shall consider any issue arising from it, and take appropriate action in the exercise of its functions. It shall, in particular, fulfil the following tasks:
(a) coordinate exchanges between the Parties regarding the development and implementation of information technology systems in the field of public procurement;
(b) make appropriate recommendations regarding the cooperation between the Parties; and
(c) adopt decisions where provided for under this Title.
Title V. Current Payments and Capital Movements
Article 163. Objective and Scope
1. The Parties shall aim at the liberalisation of current payments and capital movements between them, in conformity with the commitments undertaken in the framework of the international financial institutions and with due consideration to each Party's currency stability.
2. This Title applies to all current payments and capital movements between the Parties.
Article 164. Current Account
The Parties shall allow, in freely convertible currency and in accordance with the Articles of Agreement of the International Monetary Fund, any payments and transfers of the Current Account between the Parties.
Article 165. Capital Account
With regard to movement of capital of the Balance of Payments, from the entry into force of this Agreement, the Parties shall allow the free movements of capital relating to direct investments made in accordance with the laws of the host country and investments established in accordance with the provisions of Title III of this Part of the Agreement, and the liquidation or repatriation of these capitals and of any profit stemming therefrom.
Article 166. Exceptions and Safeguard Measures
1. Where, in exceptional circumstances, payments and capital movements between the Parties cause or threaten to cause serious difficulties for the operation of monetary policy or exchange rate policy in either Party, the Party concerned may take safeguard measures with regard to capital movements that are strictly necessary for a period not exceeding one year. The application of safeguard measures may be extended through their formal reintroduction.
2. The Party adopting the safeguard measures shall inform the other Party forthwith and present, as soon as possible, a time schedule for their removal.
Article 167. Final Provisions
1. With respect to this Title, the Parties confirm the rights and obligations existing under any bilateral or multilateral agreements to which they are parties.
2. The Parties shall consult each other with a view to facilitating the movement of capital between them in order to promote the objectives of this Agreement.
Title VI. Intellectual Property Rights
Article 168. Objective
The Parties shall grant and ensure adequate and effective protection of intellectual property rights in accordance with the highest international standards, including effective means of enforcing such rights provided for in international treaties.
Article 169. Scope
For the purposes of this Agreement, intellectual property rights embodies copyright – including copyright in computer programs and in databases - and related rights, the rights related to patents, industrial designs, geographical indications including appellation of origins, trademarks, layout-designs (topographies) of integrated circuits, as well as protection of undisclosed information and protection against unfair competition as referred to in Article 10 bis of the Paris Convention for the Protection of Industrial Property (Stockholm Act 1967).
Article 170. Protection of Intellectual Property Rights
In pursuance of the objectives set out in Article 168, the Parties shall:
(a) continue to ensure an adequate and effective implementation of the obligations arising from the following conventions:
(i) Agreement on Trade-related Aspects of Intellectual Property, Annex 1C to the Agreement establishing the World Trade Organisation ("the TRIPs");
(ii) Paris Convention for the Protection of Industrial Property (Stockholm Act, 1967);
(iii) Berne Convention for the Protection of Literary and Artistic Works (Paris Act, 1971);
(iv) Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (Rome, 1961); and
(v) International Convention for the Protection of New Varieties of Plants 1978 ("1978 UPOV Convention"), or the International Convention for the Protection of New Varieties of Plants 1991 ("1991 UPOV Convention");
(b) by 1 January 2007 acceed to and ensure an adequate and effective implementation of the obligations arising from the following multilateral conventions:
(i) Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of Registration of Marks (Geneva Act, 1977, amended in 1979);
(ii) World Intellectual Property Organization Copyright Treaty (Geneva, 1996);
(iii) World Intellectual Property Organization Performances and Phonograms Treaty (Geneva, 1996);
(iv) Patent Co-operation Treaty (Washington, 1970, amended in 1979 and modified in 1984); and
(v) The 1971 Strasbourg Agreement Concerning the International Patent Classification (Strasbourg 1971, amended in 1979)
(c) by 1 January 2009 acceed to and ensure an adequate and effective implementation of the obligations arising from the following multilateral conventions:
(i) Convention for the Protection of Producers of Phonograms against the Unauthorised Reproduction of their Phonograms (Geneva 1971);
(ii) Locarno Agreement establishing an International Classification for Industrial Designs (Locarno Union 1968, amended in 1979);
(iii) Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure (1977, amended in 1980); and
(iv) Trademark Law Treaty (Geneva, 1994);
(d) make every effort to ratify and ensure an adequate and effective implementation of the obligations arising from the following multilateral conventions at the earliest possible opportunity:
(i) Protocol to the Madrid Agreement concerning the International Registration of Marks (1989);
(ii) Madrid Agreement concerning the International Registration of Marks (Stockholm Act 1967, amended in 1979); and
(iii) The Vienna Agreement establishing an International Classification of Figurative Elements of Marks (Vienna 1973, amended in 1985).
Article 171. Review
While the Parties express their attachment to observing the obligations deriving from the above multilateral conventions, the Association Council may decide to include in Article 170 other multilateral conventions in this field.
Title VII. Competition
Article 172. Objectives
1. The Parties undertake to apply their respective competition laws in a manner consistent with this Part of the Agreement so as to avoid the benefits of the liberalisation process in goods and services being diminished or cancelled out by anti-competitive business conduct. To this end, the Parties agree to cooperate and coordinate among their competition authorities under the provisions of this Title.
2. With a view to preventing distortions or restrictions of competition which may affect trade in goods or services between them, the Parties will give particular attention to anticompetitive agreements, concerted practices and abusive behaviour resulting from single or joint dominant positions.
3. The Parties agree to cooperate and coordinate among themselves for the implementation of competition laws. This cooperation includes notification, consultation, exchange of non-confidential information and technical assistance. The Parties acknowledge the importance of embracing principles on competition that would be accepted by both Parties in multilateral fora, including the WTO.
Article 173. Definitions
For the purpose of this Title:
1. "competition laws" includes:
(a) for the Community, Articles 81, 82 and 86 of the Treaty establishing the European Community, Regulation (EEC) No 4064/89 and their implementing regulations or amendments;
(b) for Chile, Decreto Ley N° 211 of I973 and Ley N° 19.610 of 1999 and their implementing regulations or amendments; and
(c) any changes that the above mentioned legislation may undergo after the entry into force of this Agreement.
2. "competition authority" means:
(a) for the Community, the "Commission of the European Communities"; and
(b) for Chile, the "Fiscalia Nacional Económica" and the "Comisión Resolutiva".
3. "enforcement activity" means any application of competition laws by way of investigation or proceeding conducted by the competition authority of a Party, which may result in the imposition of penalties or remedies.