Application of this Chapter

1. This Chapter applies to any measure relating to a covered procurement, whether or not it is conducted exclusively or partially by electronic means.

2. For the purposes of this Chapter, covered procurement means procurement for governmental purposes:

(a) of a good, a service, or any combination thereof:
(i) as specified in each Party’s Annexes to its Market Access Schedule for this Chapter; and
(ii) not procured with a view to commercial sale or resale, or for use in the production or supply of a good or a service 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 its Market Access Schedule for this Chapter, at the time of publication of a notice in accordance with Article 19.6;
(d) by a procuring entity; and
(e) that is not otherwise excluded from coverage in paragraph 3 or a Party’s Annexes to its Market Access Schedule for this Chapter.

3. Except as otherwise provided in a Party’s Annexes to its Market Access Schedule for this Chapter, this Chapter 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 organisation, or funded by international grants, loans or other assistance if the applicable procedure or condition would be inconsistent with this Chapter.

4. A procurement subject to this Chapter shall be all procurement covered by the Market Access Schedules of Canada and the European Union, in which each Party’s commitments are set out as follows:

(a) in Annex 19-1, the central government entities whose procurement is covered by this Chapter;
(b) in Annex 19-2, the sub-central government entities whose procurement is covered by this Chapter;
(c) in Annex 19-3, all other entities whose procurement is covered by this Chapter;
(d) in Annex 19-4, the goods covered by this Chapter;
(e) in Annex 19-5, the services, other than construction services, covered by this Chapter;
(f) in Annex 19-6, the construction services covered by this Chapter;
(g) in Annex 19-7, any General Notes; and
(h) in Annex 19-8, the means of publication used for this Chapter.

5. If a procuring entity, in the context of covered procurement, requires a person not covered under a Party’s Annexes to its Market Access Schedule for this Chapter to procure in accordance with particular requirements, Article 19.4 shall apply mutatis mutandis to such requirements.

Valuation

6. 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 Chapter; 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) if the procurement provides for the possibility of options, the total value of such options.

7. If an individual requirement for a procurement results in the award of more than one contract, or in the award of contracts in separate parts (“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, if 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 a good or a service, 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) if the term of the contract is 12 months or less, the total estimated maximum value for its duration; or
(ii) if the term of the contract exceeds 12 months, the total estimated maximum value, including any estimated residual value;
(b) if the contract is for an indefinite period, the estimated monthly instalment multiplied by 48; and
(c) if it is not certain whether the contract is to be a fixed-term contract, subparagraph (b) shall be used.