At the federal level, the Supply Manual specifies that Canada’s best interest should always be considered and that, except for administrative amendments and pre-approved options, a procurement risk assessment for amendments should be completed (see Sections 8.70.5 and 8.70.10). In Québec, limitation periods are imperative and cannot be waived or shortened contractually. 2.4        Are there aggregation and/or anti-avoidance rules? For the public sector, layered on top of this contractual legal framework is a “governance framework” comprised of a collection of trade agreements and government legislation, policies and guidelines that govern procurement practices of governmental and quasi-governmental entities. 4 0 obj <>>> Relevant legislation in other provinces includes the Procurement Services Act, 2003 in British Columbia and the Public Works Act, 2000 in Alberta. 5.7        What is the likely timescale if an application for remedies is made? Procurement policy notifications. There is no widely applicable express prohibition or specific rules in relation to alternative or variant bids in Canada. and unlock access to three FREE PDF downloads per month While the common law recognises a role for negotiation in procurement, including post-award, in a binding process, negotiation would generally be limited to non-fundamental elements of the contract; i.e. The Thunder Bay Chamber of Commerce is speaking out against the Ontario government's move to centralize procurement in the province, warning local businesses stand to … See also Section 503 (1) of CFTA, Section 6 of the Supply Manual or, at the provincial level, Section 12 of Québec’s Public Contracts Act, for additional rules. Changes to the membership of bidding consortia pre-contract award is typically subject to the procuring entity’s consent and meeting certain conditions set out in the procurement documents. Infrastructure Ontario procures all goods and services in accordance with a procurement policy that is approved by our Board of Directors and subject to the Management Board of Cabinet’s Procurement Directive. 3.11      What are the rules on market engagement and the involvement of potential bidders in the preparation of a procurement procedure? Unless otherwise designated, hospitality expenses are not charged to public or donated funds. At the provincial level, various provinces have also introduced integrity and oversight regimes. Procuring entities (and public servants) have a duty to avoid any conflict of interest that could potentially compromise the integrity of the procurement process. Potential remedies include injunctions or applications for judicial review, summary judgment aimed at seeking a speedy post-tendering process resolution or post-tendering process litigation aimed at recovering damages for lost profits. A permissible approach to alternative/variant bids would need to comply with the overarching principles of fairness and transparency of the procurement process. Policies on the management of government assets such as furniture, equipment and vehicles. At the federal and provincial levels (subject to specific exceptions and thresholds), most contracts for goods, services and construction are covered by these agreements. At common law, the courts have also found that an implied duty of fairness exists in binding procurement processes as well as a duty to reject non-compliant bids and to conduct a fair process. 2 0 obj Examples of acceptable grounds to exclude a bidder are found in CETA (Article 19.7(4)) and CFTA (Section 507(4)). 3.8        What methods are available for joint procurements? For instance, certain provisions of CFTA procurement rules do not apply to PPPs (see Section 504.10). For matters before the CITT, the CITT typically has 90 days from the filing of the complaint to complete its inquiry. Applicable thresholds in force until December 31, 2019 under key trade agreements may be found at (Hyperlink). Negotiations following contract award are less constrained in non-binding processes. Yes, various trade agreements and legislation, regulations and policies contain restrictions on the division of contracts in the procurement context. At the federal level, for example, standing offers and supply arrangements are forms of framework agreements where a supplier or contractor provide goods, services or work on an “as (and when) required” basis under general terms and conditions. Certain remedies may not be available or may be limited, however, in particular as against the Crown or its agents. The procurement of goods, services or consulting service is determined by the total value of the item, before tax. Evaluating references and maintaining discretion to exclude a bidder for material performance deficiencies in prior contracts are others. The authors would to thank Carrie Fleming and Alyssa Shivji for their invaluable assistance in the preparation of this chapter. Bravo for a fine product!Robert Roeder, Group General Counsel - Impress, © 2002-2020 Copyright: ICLG.com | Our Privacy, Register with us FREE CFTA specifically contemplates the possibility of joint procurement through “buying groups”. CETA Section 19.14(7) provides that upon receiving a tender with an abnormally low price in comparison to other tenders, the procuring entity is required to verify the bidder’s capacity to meet the conditions for participation and contractual obligations. For instance, in Québec, if required by the Public Framework, bidders are to have a valid Qc Authorisation upon tender submission or contract award. CFTA and CETA both provide that unsuccessful bidders may request a debriefing following the conclusion of the procurement. In particular, to what extent are factors other than price taken into account (e.g. 3.9        What are the rules on alternative/variant bids? Generally, federal, provincial and municipal governments, departments, agencies, Crown corporations and government enterprises and other entities that are owned or controlled by the government (including school boards, universities or public utilities) are subject to a procurement governance framework and the contractual obligations derived from common law or, in Québec, from civil law. However any such changes are required be disclosed to all bidders in the same manner as the procurement documentation was initially made available and sufficiently in advance to allow bidders to take such amendments into consideration in their tender, as appropriate (see Article 19.9(11) of CETA and Section 510 of CFTA). Financial thresholds determine the obligations of the procuring entity. As part of its 2020 Budget 1 the Government of Ontario has introduced the Credit Unions and Caisses Populaires Act, 2020 (Act) which will replace the existing Credit Unions and Caisses Populaires Act, 1994 (CUCPA). %PDF-1.5 The governance framework landscape is constantly evolving at the federal and provincial levels. We are committed to procuring goods and services through processes that are fair, open, transparent, geographically neutral and accessible to qualified vendors. Other key areas of federal and provincial law applicable to public procurements include conflict of interest rules, access to information and privacy, official language, lobbying, anti-trust and criminal law. For example, pursuant to Section 19.2(6)(a) of CETA, a procuring entity cannot divide its procurement in separate procurements with the intention of totally or partially excluding such procurement from the application of CETA. Court rules in some provinces provide for mandatory pre-trial mediation in ordinary civil proceedings in certain circumstances. 8.1        Are there any proposals to change the law and if so what is the timescale for these and what is their likely impact? At this time, this bid dispute process is not fully developed and remains subject to change. For instance, Article 503(1) of CFTA provides that a procuring entity may not design or structure a procurement or divide procurements in order to avoid the obligations of CFTA. Transfer of a contract to another entity is usually governed by the term of the contract itself (assignment clause) and not legislated. Canada. 7.2        Are there special rules in relation to PPPs and what are the principal issues that arise in relation to them? 1.1        What is the relevant legislation and in outline what does each piece of legislation cover? 4.2        How does the law apply to “in-house” arrangements, including contracts awarded within a single entity, within groups and between public bodies? Find out what we collect, how we use it, and what open data and open source code you can access. For example, in Ontario, procurement by certain public-sector entities is also governed by the Broader Public Sector Accountability Act and various directives issued by the Management Board of Cabinet. Timescales vary depending on the applicable governance framework. Learn more about implementing accessible procurement practices at Western University as mandated by the Ontario Government.. Customs & Logistics. Relevant legislation This section intentionally left blank. Outside of Québec, the law in Canada with respect to public procurement is based largely on common law and there is no single piece of legislation that governs public procurement. Framework agreements are also contemplated by some provincial legislation for instance, in Québec, for the acquisition of cloud goods and services. ICLG - Public Procurement Laws and Regulations - The principles of fairness, openness and transparency are at the heart of the governance framework applicable to public procurement in Canada. Policies on the management of government assets such as furniture, equipment and vehicles. In common law provinces, limitation periods may be shortened through clear unequivocal contractual provisions (subject to restrictions in applicable legislation) but this is rare in the procurement context and subject to the obligation of fairness. A common remedy is to require the procuring authority to re-tender but damages may also be awarded in circumstances where this is not an appropriate remedy. We outline some of the key changes in our latest guidance. In Québec, the minimum timescale is typically 15 days pursuant to the Public Framework. Blake, Cassels & Graydon LLP, The International Comparative Legal Guides and the International Business Reports are published by: Global Legal Group, The quality of the advice and the manner in which it is presented is excellent--I've already referred to it for M&A in several jurisdictions to give me an overview before I hired local counsel. 3.3 What are the rules on excluding/short-listing tenderers? 7.1        Are there special rules in relation to privatisations and what are the principal issues that arise in relation to them? The Policy Analyst and Compliance Officer, or successor thereof, is responsible to monitor and review this Policy. For bidders, there is generally an obligation to declare actual or potential conflicts of interest and comply with conflict of interest provisions which are typically included in procurement documentation. Already registered? Canada is a party to numerous trade agreements including the World Trade Organization Agreement on Government Procurement, the Comprehensive Economic and Trade Agreement between Canada and the EU (“CETA”), the Canadian Free Trade Agreement (“CFTA”), the Comprehensive and Progressive Trans-Pacific Partnership (“CPTPP”) and, until it is no longer in force, the North American Free Trade Agreement (“NAFTA”). The Government of Ontario stated that the Act would allow the government to centrally manage public sector supply chains and to collect key data on crucial supplies, which in turn would enable it to prioritize the acquisition and allocation of essential … 5.2        Can remedies be sought in other types of proceedings or applications outside the legislation? Over the past two decades, privatisations have become increasingly less popular in Canada. 1.3        Are there special rules in relation to procurement in specific sectors or areas? Value for money, geographic non-discrimination, consistent treatment of bidders, accountability and confidentiality are also central to public procurement. Available procedures may include invitation to tender, request for proposals, request for quotation, qualification or prequalification of suppliers, standing offers and supply arrangements. Assignments by the public contracting entity are usually permitted without conditions. 6.3 To what extent are changes permitted post-contract signature? In most provinces (except Québec, which is three years for monetary claims), the limitation period for claims is two years from the time the claim arises or the claimant should have known of the existence of the claim. Each international trade agreement has implementing legislation in Canada. Updates related to policies on reporting, taxes, trade agreements and more. Canada is a federal parliamentary democracy and constitutional monarchy. On November 5, 2020, Ontario took another significant step towards centralizing public and broader public sector procurement activities with the new Ontario Regulation 612/20 Centralized Supply Chain Ontario.This regulation establishes a centralized agency to provide and support supply chain management for three classes of entities (collectively, "covered entities"): 6.3        To what extent are changes permitted post-contract signature? �$I���)��g�_�j��� 3�� �Ke�ܪ����~өs}c�?�K�$I*�z�ӿ{��m+6�7; ALK��Xٴ��䈷�%I�$`��=��_3��O ��4yӒ��W�uv����%I�$�o��D�N�?���_]\W�Hߪ �M/O�v�>l=uv8���$I��8?�5t�knXT|� ����]�r�,�-I�$I��(�w>���}WT��) �y�O����S��jI�$IS���ܞ֞�/�����D�u .HI"u��Uo�_�fϗ��* ���{�`׹Q/�K�$I�4墸�@wٳ�f���) �ʗ�T=��`K�@�[�$I�dnd,��Hϼv_���(� CI"u���+�}4�j�� 05ܼ���w�9?��K�$I����x��ss��=ӣ1 L=WͭZ���V�H�$I����s{Z{����� 0��$R7-mx���ǻ���m��~�j��6 �'����w�9�;��.I�$�o���w��{/���� @�v~���[�����%I�$�c�l��>����-�-N�_a oM+K}ky���v��"�s�$I��iq�� @�(*M~���kk� �fC��$I�w�k��?�6; |1E��[�nx��DO:�t/I�$�RE��/��޲�aZY*�� ����=���M��N�$I�Tid,�jձ�ݿ�8�J �����/��V��+��$I�4��̬k. 3.0 PROCUREMENT GUIDELINES ..... 5 3.1 Procurement of Goods and Services with a value of ... jurisdictions that practice reciprocal non-discrimination in Ontario. Additional inquiries can be directed to Kevin Jones, Procurement Manager at 905.721.8668 ext. 2.2        Which types of contracts are covered? Public-sector entities have discretion with respect to the procurement process adopted, provided such processes are conducted in an open, transparent and non-discriminatory manner and in compliance with the applicable governance framework. The Canadian Federal Government has also published its commitment to the "Responsible use of AI". For example, on August 22, 2019, in eVision Inc., SoftSim Technologies Inc., in Joint Venture v. Privy Council Office, the CITT recommended that the complainant be compensated for its lost opportunity by an amount equal to one-half of the profit that it would reasonably have earned, had it been the successful bidder in connection with a procurement process that was found to have breached trade agreement obligations. Hamilton's Procurement Policy By-law 20-205 (PDF, 452 KB) outlines the procurement policy of the City of Hamilton. 1.2        What are the basic underlying principles of the regime (e.g. Register with us FREE, Robert Roeder, Group General Counsel - Impress, and unlock access to three FREE PDF downloads per month. BPS organizations are defined as those that receive more than $10 million annually from the Ministry of Finance. Common circumstances which permit non-competitive procurement include situations of extreme urgency, where a good or service can only be supplied by a particular supplier and no reasonable alternative exists or the absence of participation of suppliers (see Article 19.12 of CETA and Article 513 of CFTA and its Schedules). Tel: +1 604 631 3367 / Email: carrie.fleming@blakes.com. 4.1 What are the principal exclusions/exemptions? 2.8        What obligations do purchasers owe to suppliers established outside your jurisdiction? 1 0 obj 4.1        What are the principal exclusions/exemptions? Thresholds will vary depending on the applicable governance framework, the goods/services being procured and the procuring entity. On November 16, the Ontario Government announced the launching of a new agency, Supply Ontario, to centralize government procurement.. Search 671 Procurement jobs now available in Ontario on Indeed.com, the world's largest job site. At the federal level, the Procurement Ombudsman can hear complaints from dissatisfied bidders under certain circumstances in relation to the procurement by certain federal entities. The policy sets out the principles and standards which define and guide procurement practices at the university, affirms its application to all acquisitions, contracts and agreements involving the university operating, capital, ancillary, research and all other funds held in trust or at its disposal, and advances the collective responsibility of all members of the university to manage these resources with honesty, care … Government of Ontario: Procurement Policies and Procedures Procurement Policy and IT Procurement Branch Office of the Corporate Chief Information Officer Management Board Secretariat November 25, 2003. However, USMCA’s chapter on government procurement will not apply to Canada. Signing Authority Policy. Gifts from Suppliers. However, matters subsequent to the award of a contract fall outside CITT jurisdiction except where the mandatory requirements are changed after contract award. Tel: +1 416 863 5289 / Email: alyssa.shivji@blakes.com, Clémentine Sallée Model Standards of Practice for Canadian Pharmacists; Drug and Pharmacies Regulation Act and Regulations; Accreditation Standards; College Contact: Pharmacy Practice Purpose. In addition, as part of the governance framework, trade agreements may impose obligations (see, for example, Article 19.4(4)(b) of CETA). Additional mitigation measures include early engagement with suppliers, having a Q&A process embedded in the procurement, engaging a fairness monitor and reserving discretion to waive minor deficiencies and clarify genuine ambiguities in proposals. Generally speaking and subject to the obligation to conduct an open, fair and transparent process, the conditions of participation in a public tender, including the rules on excluding or short- listing tenders, are set by the procuring entity. PPP procurement processes are subject to certain rules to adapt the general procurement framework to their specificity. stream Some provincial legislation also establishes restrictions on participation. Certain types of “in-house” arrangements are not subject to the trade agreements; for example, a procurement between subsidiaries or affiliates of the same entity or between one government body or enterprise and another government body or enterprise (see Section 504(11) and Annexes of CFTA and Article 19 and Annex 19-7 of CETA). In Québec, public bodies may be sued for extra-contractual liability (the equivalent of tort) under the Civil Code of Québec in the same courts as those involving private parties. <> CETA and CFTA both permit negotiations: (i) where indicated in the procurement documentation; or (ii) where no one bid is obviously the most advantageous. In making such recommendation, the CITT noted that the breach was the result of an inadvertent error and that there was no evidence of bad faith, elements which minimised the prejudice to the integrity and efficiency of the procurement process and did not warrant its cancellation. 3.0 PROCUREMENT GUIDELINES ..... 5 3.1 Procurement of Goods and Services with a value of ... jurisdictions that practice reciprocal non-discrimination in Ontario. ICES is classified as a BPS organization and its Sourcing an… 25 mandatory requirements 6 BPS Procurement Directive Outside of the jurisdiction of the CITT, at both the federal and provincial level, bidders can seek recourse through the courts. At both the federal and provincial levels, conflict of interest legislation will be applicable. Procurement Guideline for Publicly Funded Organizations in Ontario is a summary of best practices in the procurement of goods and services for organizations funded by the Ontario government and not designated under the Broader Public Sector Accountability Act, 2010. In Canada, competitive procurement processes, including tenders, may evaluate factors in addition to price, provided the procurement documentation sets out the applicable evaluation criteria and the relative importance of each criterion. The principle of fairness requires that a procuring entity comply with any rules set out in its procurement documents, so long as they do not conflict with its governance framework. In Québec, however, only “non-fundamental” changes may be made. The main piece of legislation is the Act respecting contracting with public bodies (the “Public Contracts Act”) and its implementing regulations and directives, which govern the procurement of public bodies broadly defined (the “Public Framework”). 6.3 To what extent are changes permitted post-contract signature? covers common issues in public procurement laws and regulations – including application of the law to entities and contracts, award procedures, exclusions and exemptions – in 27 jurisdictions. 4.1 An employee must not solicit or accept gifts from a supplier. Generally, a contracting authority is required to award the contract in accordance with the procedure set out in its procurement documentation, to the extent such procedure complies with the applicable governance framework, and in a fair and transparent manner. The BPS Procurement Directive, issued by the Management Board of Cabinet, sets out procurement rules in the purchase of goods and services, by BPS organizations in Ontario, using public funds. For example, in Ontario, procurement by certain public-sector entities is also governed by the Broader Public Sector Accountability Act and various directives issued by the Management Board of Cabinet. The CITT’s remedies include termination of the awarded contract or monetary compensation of the complainant. Practice Areas > endobj 3.3        What are the rules on excluding/short-listing tenderers? Canada For federal procurements, complainants have 10 business days to file a complaint with the CITT after the day on which the basis of the complaint became (or reasonably should have become) known to them. The Treasury Board's "AI Procurement for a Digital World" sets out high-level process guidelines to "eliminate bias, be open about how AI is informing decisions, and ensure potential benefits are weighed against unintended results." CFTA requires the development of an independent and impartial process within each province and federally to allow a bidder to challenge procurement if the bidder believes it was not conducted in accordance with CFTA rules. This contractual framework applies to both the public sector and the private sector when issuing or responding to binding competitive procurement processes and has been integrated into civil law. 1.4        Are there other areas of national law, such as government transparency rules, that are relevant to public procurement? Goals and objectives of the Procurement Policy Procure the necessary quality and quantity of Goods and/or Services in an efficient, timely and cost effective manner, while maintaining the controls necessary for a public agency, in accordance with the Procurement However, because the involvement of potential bidders in the preparation of a procurement procedure may be seen to create a conflict of interest or unfair advantage in violation of a procuring entity’s governance framework, it may violate a procuring entity’s governance framework to engage potential bidders in this way. 5.1        Does the legislation provide for remedies and if so what is the general outline of this? Also, any party in the proceeding may request the express option and require the CITT to reach a decision within 45 days. Under CETA, the minimum timescale for the submission of tenders is 40 days from the publication of the notice of intended procurement or the invitation to tender, but in certain circumstances can be lowered to a minimum of 10 days. 2.6        Are there special rules for the conclusion of framework agreements? At the federal level, the Canadian International Trade Tribunal (“CITT”) is responsible for safeguarding the integrity of federal procurement, including breach of certain trade agreements. 3.5        What are the rules on the evaluation of abnormally low tenders? Not, what are the components of Canada ’ s decisions may also in certain circumstances be subject to the. Outline some of the CITT ’ s decisions may also be subject to the interpretation the... 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