(b) the value and kind of goods or services procured; and
(c) a statement indicating the circumstances and conditions described in paragraph 1 that justify the use of limited tendering.
Article 9.13. ELECTRONIC AUCTIONS
Where a procuring entity intends to conduct a covered procurement using an electronic auction, the entity shall provide each participant, before commencing the electronic auction, with:
(a) the automatic evaluation method, including the mathematical formula, that is based on the evaluation criteria set out in the tender documentation and that will be used in the automatic ranking or re-ranking during the auction;
(b) the results of any initial evaluation of the elements of its tender where the contract is to be awarded on the basis of the most advantageous tender; and
(c) any other relevant information relating to the conduct of the auction.
Article 9. TREATMENT OF TENDERS AND AWARDING OF CONTRACTS
Receipt and Opening 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 shall treat all tenders in confidence until at least the opening of the tenders.
2. A procuring entity shall not penalise any supplier whose tender is received after the time specified for receiving tenders if the delay is due solely to mishandling on the part of the procuring entity.
3. Where a procuring entity provides suppliers with opportunities to correct unintentional errors of form between the opening of tenders and the awarding of the contract, the procuring entity shall provide the same opportunities to all participating suppliers.
Awarding of Contracts
4. A procuring entity shall require that in order 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 notices and tender documentation and be from a supplier that satisfies the conditions for participation.
5 Unless a procuring entity determines that it is not in the public interest to award a contract, the entity shall award the contract to the supplier that the entity has determined to be capable of fulfilling the term of 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. Where a procuring entity receives 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.
7. A procuring entity shall not use options, cancel a covered procurement, or terminate or modify awarded contracts in a manner that circumvents this Chapter.
Article 9. DISCLOSURE OF INFORMATION
Provision of Information to Parties
1. On request of any other Party, a Party shall 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, a procuring entity shall not provide information to particular suppliers that might prejudice fair competition between suppliers.
3. Nothing in this Agreement shall be construed to require a 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 9.16. POST-AWARD INFORMATION
1. A procuring entity shall promptly inform suppliers that have submitted tenders of its contract award decision. Subject to paragraphs 2 and 3 of Article 9.15, a procuring entity shall, upon request, provide an unsuccessful supplier with the reasons that the entity did not select that supplier's tender and the relative advantages of the successful supplier's tender.
2. Not 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 9-B. Where the 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 or the contract date; and
(f) the type of procurement method used, and in cases where limited tendering was used in accordance with Article 9.12, a description of the circumstances justifying the use of limited tendering.
3. Each procuring entity shall, for a period of at least three years from the date it awards a contract, maintain:
(a) the documentation and reports of tendering procedures and contract awards relating to covered procurement, including the reports required under Article 9.12 ; and
(b) data that ensure the appropriate traceability of the conduct of covered procurement by electronic means.
Article 9.17. 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 the Chapter; or
(b) where the supplier does not have a right to challenge directly a breach of the Chapter under the law of a Party, a failure to comply with a Party's measures implementing this Chapter.
The procedural rules for all challenges shall be in writing and made generally available.
2. In the event of a complaint by a supplier, arising in the context of covered procurement in which the supplier has, or has 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 the entity and the supplier to seek resolution of the complaint through consultations. The 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 procurement or its right to seek corrective measures under the administrative or judicial review procedure.
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 maintain at least one impartial administrative or judicial authority (hereinafter referred to as "review body") that is independent of its procuring entities to receive and review, in a non-discriminatory, timely, transparent and effective manner, complaints that a supplier of a Party submits, in accordance with the Party's law, relating to a covered procurement.
5. Where a review 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 that is independent of the procuring entity whose procurement is the subject of the challenge.
6. Each Party shall ensure that a review body, 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;
(b) the participants to the proceedings (hereinafter referred to as "participants") shall have the right to be heard prior to a decision of the review body 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) decisions or recommendations relating to supplier challenges shall be provided, in a timely fashion, in writing, with 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 has determined that there has been a breach of this Chapter or a failure, corrective action or compensation for the loss or damages suffered, which may be limited to either the costs for the preparation of the tender or the costs relating to the challenge, or both.
Article 9.18. RECTIFICATIONS AND MODIFICATIONS TO COVERAGE
1. A Party may make rectifications of a purely formal nature to its coverage under this Chapter, or minor amendments to its schedules in Annex 9-A, provided that it notifies the other Party in writing and the other Party does not object in writing within 30 days from notification. A Party that makes such a rectification or minor amendment need not provide compensatory adjustments to the other Party.
2. A Party may otherwise modify its coverage under this Chapter provided that:
(a) it notifies the other Party in writing and simultaneously offers acceptable compensatory adjustments to the other Party to maintain a level of coverage comparable to that existing prior to the modification, where necessary; and
(b) no objection in writing was submitted by the other Party within 30 days from notification.
3. A Party need not provide compensatory adjustments when proposing a modification on the grounds that government control or influence over the entity's covered procurement has been effectively eliminated. Where a Party objects to the assertion that such government control or influence has been effectively eliminated, the objecting Party may request further information or consultations with a view of clarifying the nature of any government control or influence and of reaching agreement on the procuring entity's continued coverage under this Chapter.
Article 9.19. SMALL AND MEDIUM ENTERPRISES' PARTICIPATION
1. The Parties recognize the importance of the participation of SMEs in government procurement.
2. The Parties also recognize the importance of business alliances between suppliers of each Party, and in particular of SMEs, including the joint participation in tendering procedures.
3. The Parties shall work jointly towards exchanging information and facilitating SMEs access to government procurement procedures, methods and contracting requirements, focused on their special needs.
Article 9.20. COOPERATION
1. The Parties recognize the importance of cooperation with a view to achieving a better understanding of their respective government procurement systems, as well as a better access to their respective markets, in particular for SMEs.
2. The Parties shall cooperate in matters such as:
(a) exchange of experiences and information, such as regulatory frameworks, best practices and statistics;
(b) development and use of electronic communications in government procurement systems;
(c) capacity and technical assistance to suppliers with respect to access to the government procurement market; and
(d) institutional strengthening for the fulfillment of the provisions of this Chapter, including training of government personnel.
Article 9.21. SUBCOMMITTEE ON GOVERNMENT PROCUREMENT
1. The Parties hereby establish a Subcommittee on Government Procurement comprising representatives of each Party.
2. The functions of the Subcommittee shall be the following:
(a) evaluate the implementation of this Chapter and recommend appropriate activities to the Parties;
(b) coordinate cooperation activities;
(c) evaluate and follow up the activities related to cooperation that may be presented by the Parties; and
(d) consider further negotiations aimed at broadening the coverage of this Chapter.
3. The Subcommittee shall meet upon request of a Party or as mutually agreed. The meetings may also be held, as necessary, by telephone, videoconference or other means, upon agreement of the Parties.
Article 9.22. FURTHER NEGOTIATIONS
In the event that a Party offers in the future, additional advantages to a non-Party, additional advantages with regard to its respective government procurement market access coverage agreed under this Chapter, it shall agree, upon request of the other Party, to enter into negotiations with a view to extending coverage under this Chapter on a reciprocal basis.
Chapter 10. Investment
Article 10.1. DEFINITIONS
For the purposes of the present Chapter:
Investments means any kind of assets, implemented in accordance with the legislation of the Host Party in whose territory the investment is made including, but not limited to:
(a) movable and immovable property, as well as any other rights in rem, in respect of every kind of asset;
(b) rights derived from stocks, shares, bonds, debentures and from other forms of interest in legal entities;
(c) claims to money, goodwill and other assets and any claim having an economic value;
(d) Intellectual Property Rights, including, inter alia, patents, trademarks, geographical indications, industrial designs, copyrights and related rights, undisclosed business information, trade secrets, topographies of integrated circuits and plant-breeders rights, and know-how;
(e) business concessions conferred by legislation or under contract, including concessions to search for, cultivate, extract or exploit natural resources.
For the avoidance of doubt investment does not include:
(a) public debt operations;
(b) claims to money arising solely from:
(i) Commercial contracts for the sale of goods and services by a national or legal entity in the territory of a Home Party to a national or a legal entity in the territory of the Host Party; or
(ii) Credits granted in relation with a commercial transaction.
The provisions of this chapter relating to investments shall apply to the reinvestment of the returns of an investment, which shall be granted the same treatment granted to the original investment, if the reinvestment is effected in accordance with the legislation of the Host Party. A change in the form of the investment or a change in the form of the reinvestment shall not affect their character as investments within the meaning of this Chapter if the change is effected in accordance with the legislation of the Host Party in whose territory the investment is made.
For greater certainty, the minimum characteristics of an investment shall be:
(a) the commitment of capital or other resources;
(b) the assumption of risk for the investor;
Investor of a Party means
1. (a) With respect to the State of Israel: a natural person who is a national or permanent resident of the State of Israel who is not also a national of the Republic of Colombia;
(b) With respect to the Republic of Colombia: a natural person who is a national of Colombia who is not also a national or permanent resident of the State of Israel; or
2. A legal entity, including a corporation, a firm, an association or a partnership, which is either:
(a) constituted or otherwise organized under the legislation of the Home Party, and is engaged in substantive business operations in the territory of:
(i) either Party; or
(ii) any other Member of the WTO and is owned or controlled by natural persons of that Home Party or by a legal entity that meets the conditions of subparagraph (a)(i); or
(b) a subsidiary or a branch in non-Parties, owned or controlled by a legal entity that meets the conditions of subparagraph (a)( i);
Returns means the amount yielded by an investment including, but not limited to: dividends, profits, sums received from the total or partial liquidation of an investment, interest, capital gains, royalties or fees;
Territory means:
1. With respect to the State of Israel: the territory of the State of Israel including the territorial sea, as well as the continental shelf and the exclusive economic zone over which the State of Israel exercises sovereign rights or jurisdiction in conformity with international law and in accordance with the laws of the State of Israel;
2. With respect to the Republic of Colombia the term "territory" comprises its continental and insular territory, internal waters, the territorial sea and the airspace and maritime areas over which it exercises sovereignty or sovereign rights or jurisdiction in accordance to its domestic law and international law, including applicable international treaties;
Host Party means the Party in whose territory the investment is made, and Home Party means in relation to that investment, the other Party;
Freely usable currency means any currency that the International Monetary Fund determines, from time to time, as a freely usable currency in accordance with the IMF Agreement and amendments thereto;
Legislation means the laws and regulations of a Party and the right to exercise the administrative powers conferred by those laws and regulations.
Article 10.2. SCOPE OF APPLICATION
1. The provisions of this Chapter shall apply to investments of investors of the Home Party in the territory of the Host Party existing at the time of the entry into force of this Agreement, as well as to investments made thereafter, in accordance with the legislation of the Host Party.
2. The provisions of this Chapter shall not apply to an investment that is subject to a dispute which has arisen before the entry into force of this Agreement.
3. For greater certainty, the provisions of this Chapter shall not apply to disputes concerning any act or fact that took place or any situation that ceased to exist, prior to the date of entry into force of this Agreement.
Article 10.3. PROMOTION AND PROTECTION OF INVESTMENTS
1. Each Party shall, in its territory, encourage and create favorable conditions for investments by investors of the other Party and, subject to its legislation, shall admit such investments.
2. Investments made by investors of each Party shall be accorded fair and equitable treatment in accordance with the provisions of this Chapter and customary international law, and shall enjoy full protection and security in the territory of the other Party.
3. To avoid any doubt:
(a) "Fair and equitable treatment" includes the prohibition against denial by any unreasonable measures, of the management, maintenance, use, enjoyment or disposal of investments of investors of the Home Party in the Host Party's territory.
(b) "Fair and equitable treatment" shall not be construed as to prevent a Party from exercising its regulatory powers in a transparent and non-discriminatory manner.
(c) The "Full protection and security" standard does not imply, in any case, a better police protection than that accorded to nationals of the Party where the investment has been made.
(d) A determination that there has been a breach of another provision of this Agreement or another international agreement does not imply that the fair and equitable treatment has been breached.
4, The Parties announced that they are both members to the OECD Declaration and Decisions on International Investment and Multinational Enterprises, 1976 as revised in 2011.
Article 10.4. NATIONAL TREATMENT
1. Each Party, subject to its legislation at the time of entry into force of this Agreement, shall accord to covered investors of the other Party treatment no less favorable than that it accords, in like circumstances, to its own investors with respect to the expansion, management, maintenance, use, enjoyment, conduct, or disposal of their investment, operation and sale or other disposition of investments in its territory.
2. Each Party, subject to its legislation at the time of entry into force of this Agreement, shall accord to covered investments treatment no less favorable than that it accords, in like circumstances, to investments of its own investors with respect to the expansion, management, maintenance, use, enjoyment, conduct or disposal of their investment, operation and sale or other disposition of investments in its territory.
3. The Parties shall review and update on a regular basis their exceptions under the principle of National Treatment set forth in this Article through a review mechanism established by the two Parties. A Party may present reservations to such an update only provided that its reservation is based on a material and substantial reason which directly relates to the application of the specific proposed update with regard to investments made prior to that update. In such cases, upon the request of either party, the parties shall initiate a discussion with a view to agree on possible adjustments to be applied as agreed between the parties with regard to such investments.
4, An investor shall have no claim against a Host Party concerning exceptions to National Treatment set forth in this Article, which were in place at the time his investment was made or which were updated in accordance with the conditions and mechanism set forth in paragraph 3.
Article 10.5. MOST-FAVORED-NATION
1. Each Party shall accord to investors of the other Party treatment no less favorable than that it accords, in like circumstances, to investors of a non-Party with respect to the expansion, management, maintenance, use, enjoyment, conduct or disposal of their investment, operation and sale or other disposition of investments in its territory.
2. Each Party shall accord to covered investments treatment no less favorable than that it accords, in like circumstances, to investments of investors of a non-Party with respect to the expansion, management, maintenance, use, enjoyment, conduct or disposal of their investment, operation and sale or other disposition of investments in its territory.
3. For the sake of avoiding any misunderstanding, it is further clarified that the treatment referred to in paragraphs 1 and 2 shall not apply to definitions, nor to mechanisms for dispute settlement between one Party and an Investor of the other Party, or to any other matter not specifically mentioned in paragraphs 1 and 2.
Article 10.6. FREE TRANSFERS
1. Each Party shall, in respect of investments, guarantee to investors of the other Party the rights of unrestricted transfer of their:
(a) capital;
(b) returns;
(c) payments pursuant to foreign loans;
(d) payments arising out of the settlement of a dispute under Article 10.12;
(e) proceeds from the sale of all or any part of the investment, or from the partial or complete liquidation of the investment;
(f) salaries and remunerations received by the employees hired overseas in connection with an investment;