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Government Procurement: The State of the Law Paul Emanuelli Managing Director The Procurement Office [email protected] 416-700-8528 www.procurementoffice.com
Government Procurement:
The State of the Law
Paul Emanuelli Managing Director
The Procurement Office [email protected]
416-700-8528
www.procurementoffice.com
Copyright Notice
The following excerpts from Government Procurement (copyright LexisNexis 2005, 2008, 2012 and 2017), The Laws of Precision Drafting (copyright Northern Standard Publishing 2009), Accelerating the Tendering Cycle (copyright Northern Standard Publishing 2012) and the Procurement Law Update newsletter (copyright Paul Emanuelli 2006-17) are reproduced with permission. The further reproduction of these materials without the express written permission of the author is prohibited.
© Paul Emanuelli, 2017
For further information please contact: [email protected]
About the Author Paul Emanuelli is the General Counsel and Managing Director of the Procurement Office. He was recognized by Who’s Who Legal as one of the top ten public procurement lawyers in the world. His portfolio includes advising on strategic governance in public purchasing and on negotiating high-profile major procurement projects. Paul has an extensive track record of public speaking, publishing and training. He is the author of Government Procurement, The Laws of Precision Drafting, Accelerating the Tendering Cycle and the Procurement Law Update newsletter. Paul hosts a monthly webinar series and has trained and presented to thousands of procurement professionals from hundreds of institutions across North America through the Procurement Office and in collaboration with leading industry organizations including NIGP, SCMA, the University of the West Indies and Osgoode Hall Law School.
The State of the Law Top Five Legal Trends
The fourth edition of Government Procurement encompasses nearly twenty years of in-depth research and intensive practical experience working with public institutions at all levels of government. This presentation draws from the deep well of recent legal developments covered in the new textbook to provide an analysis of the top five legal trends currently impacting public sector procurement.
The State of the Law 1. Recalibrating for the New Bid Dispute Regime
Effective July 1, 2017, the Canadian Free Trade Agreement (“CFTA”) will replace its predecessor, the Agreement on Internal Trade (“AIT”). The CFTA carries forward the open public procurement obligations contained under the AIT while adding significant new provisions. The CFTA, along with the Canada-Europe Comprehensive Economic and Trade Agreement (“CETA”), which comes into force the same day, includes a new bid-dispute regime that gives suppliers expanded rights to legally challenge government procurement decisions.
Read More: Introducing the New CFTA and Introducing the New CETA
The State of the Law 2. Revisiting the Legal Foundations of Court Disputes
The Canadian courts are becoming increasingly interventionist in granting administrative law–based procedural remedies, including contract termination orders, to sanction unfair government procurement practices. Purchasing institutions must now manage the rising tide of judicial review while also dealing with lost profit claims under Contract A and extra cost claims under the torts of negligent misrepresentation and omission.
Read More: Federal Court of Appeal Adopts Procedural Correctness Standard Read More: Court of Appeal Awards Lost Profits for Unfair Evaluations Read More: $2 Million in Extra Costs Due to Flawed Technical Disclosure
The State of the Law 3. Refining Compliance with Fair Competition Duties
The trade treaties, along with the implied common law duties, heavily regulate bidding process rules, bid evaluation criteria and contract requirements. Once established, the bidding rules must be followed with precision since competing bidders can challenge everything from tender compliance assessments, to the scoring of competing proposals, to the decision to cancel a bidding process due to budgetary constraints.
Read More: Spec Drafting Decisions Subject to Judicial Review Read More: Data Centre Tender Triggers Multiple Bid Complaints Read More: Bid Shopping Claim at Wayne Gretzky Sports Centre
The State of the Law 4. Relaunching Project Governance Practices
Project teams must carefully manage and document their bid evaluations to ensure that they are fairly conducted and not compromised by bias or conflict of interest. The failure to keep proper evaluation records can result in the failure to defend legal challenges. Public institutions must also address the risks imposed by improper supplier conduct and should establish debarment processes to sanction poor performance and deter unethical conduct, including improper lobbying, collusion and price fixing.
Read More: Ten Critical Defects in Nuclear Bid Evaluation Read More: Enhanced Consensus Scoring: Implementing Lessons Learned
The State of the Law 5. Re-Investing in Institutional Governance
Public institutions can achieve compliance through the creation of proper institutional policies and procedures and through the adoption of advanced drafting and evaluation protocols, systems and tools. Re-investing in institutional governance is essential for those public bodies that are serious about properly serving the public interest.
Read More: Procurement Law Calls for Proactive Governance Read More: Breaking Trends in the Use of Negotiated RFPs Read More: 2020 Vision: How to Relaunch Your Tendering System
The State of the Law Next-Step Summary
In summary, to address emerging legal trends, public institutions should implement the following due diligence measures:
1. Recalibrate for the New Bid Dispute Regime2. Revisit the Legal Foundations of Court Disputes3. Refine Compliance With Fair Competition Duties4. Relaunch Project Governance Practices5. Re-Invest in Institutional Governance
The new 4th edition of the Government Procurement textobook will be released in June. Please visit the Lexis Nexis online store to order your copy.
Introducing the Canadian Law Live Online Learning Series
We are pleased to announce the new Canadian Law Series of our Live Online Learning program, based on the brand new 4th edition of the Government Procurement textbook. The Canadian Law Series will run in parallel to our current Global Practice Series.
Stay tuned for more details, which will be coming shortly.
GLOBAL PRACTICE SERIES
CANADIAN LAW SERIES
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www.procurementoffice.com
For more information please contact:
Paul Emanuelli Managing Director and General Counsel
Procurement Office [email protected]
416-700-8528
Marilyn Brown Senior Counsel
Procurement Office [email protected]
416-700-8531
Jennifer Marston Legal Counsel
Procurement Office [email protected]
416-700-8537
Heather Baker Executive Assistant and Procurement Advisor
Procurement Office [email protected]
416-700-8535
