Agreement on Government Procurement:Article II Scope and Coverage

Agreement on Government Procurement

Article II Scope and Coverage

Geldend

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1. Application of Agreement

This Agreement applies to any measure regarding covered procurement, whether or not it is conducted exclusively or partially by electronic means.

2.

For the purposes of this Agreement, covered procurement means procurement for governmental purposes:

a)

of goods, services, or any combination thereof:

(i)

as specified in each Party's annexes to Appendix I; and

(ii)

not procured with a view to commercial sale or resale, or for use in the production or supply of goods or services for commercial sale or resale;

b)

by any contractual means, including: purchase; lease; and rental or hire purchase, with or without an option to buy;

c)

for which the value, as estimated in accordance with paragraphs 6 through 8, equals or exceeds the relevant threshold specified in a Party's annexes to Appendix I, at the time of publication of a notice in accordance with Article VII;

d)

by a procuring entity; and

e)

that is not otherwise excluded from coverage in paragraph 3 or a Party's annexes to Appendix I.

3.

Except where provided otherwise in a Party's annexes to Appendix I, this Agreement does not apply to:

a)

the acquisition or rental of land, existing buildings or other immovable property or the rights thereon;

b)

non-contractual agreements or any form of assistance that a Party provides, including cooperative agreements, grants, loans, equity infusions, guarantees and fiscal incentives;

c)

the procurement or acquisition of fiscal agency or depository services, liquidation and management services for regulated financial institutions or services related to the sale, redemption and distribution of public debt, including loans and government bonds, notes and other securities;

d)

public employment contracts;

e)

procurement conducted:

(i)

for the specific purpose of providing international assistance, including development aid;

(ii)

under the particular procedure or condition of an international agreement relating to the stationing of troops or relating to the joint implementation by the signatory countries of a project; or

(iii)

under the particular procedure or condition of an international organization, or funded by international grants, loans or other assistance where the applicable procedure or condition would be inconsistent with this Agreement.

4.

Each Party shall specify the following information in its annexes to Appendix I:

a)

in Annex 1, the central government entities whose procurement is covered by this Agreement;

b)

in Annex 2, the sub-central government entities whose procurement is covered by this Agreement;

c)

in Annex 3, all other entities whose procurement is covered by this Agreement;

d)

in Annex 4, the goods covered by this Agreement;

e)

in Annex 5, the services, other than construction services, covered by this Agreement;

f)

in Annex 6, the construction services covered by this Agreement; and

g)

in Annex 7, any General Notes.

5.

Where a procuring entity, in the context of covered procurement, requires persons not covered under a Party's annexes to Appendix I to procure in accordance with particular requirements, Article IV shall apply mutatis mutandis to such requirements.

6. Valuation

In estimating the value of a procurement for the purpose of ascertaining whether it is a covered procurement, a procuring entity shall:

a)

neither divide a procurement into separate procurements nor select or use a particular valuation method for estimating the value of a procurement with the intention of totally or partially excluding it from the application of this Agreement; and

b)

include the estimated maximum total value of the procurement over its entire duration, whether awarded to one or more suppliers, taking into account all forms of remuneration, including:

(i)

premiums, fees, commissions and interest; and

(ii)

where the procurement provides for the possibility of options, the total value of such options.

7.

Where an individual requirement for a procurement results in the award of more than one contract, or in the award of contracts in separate parts (hereinafter referred to as ‘recurring contracts’), the calculation of the estimated maximum total value shall be based on:

a)

the value of recurring contracts of the same type of good or service awarded during the preceding 12 months or the procuring entity's preceding fiscal year, adjusted, where possible, to take into account anticipated changes in the quantity or value of the good or service being procured over the following 12 months; or

b)

the estimated value of recurring contracts of the same type of good or service to be awarded during the 12 months following the initial contract award or the procuring entity's fiscal year.

8.

In the case of procurement by lease, rental or hire purchase of goods or services, or procurement for which a total price is not specified, the basis for valuation shall be:

a)

in the case of a fixed-term contract:

(i)

where the term of the contract is 12 months or less, the total estimated maximum value for its duration; or

(ii)

where the term of the contract exceeds 12 months, the total estimated maximum value, including any estimated residual value;

b)

where the contract is for an indefinite period, the estimated monthly instalment multiplied by 48; and

c)

where it is not certain whether the contract is to be a fixed-term contract, subparagraph (b) shall be used.

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