Published by Global Legal Group, with contributions from:
A practical cross-border insight into public procurement
7th Edition
General Chapter:
1 EU Public Procurement Rules - Donald Slater & Edward McNeill, Ashurst LLP 1
www.ICLG.co.uk
DisclaimerThis publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice.Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication.This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified professional when dealing with specific situations.
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The International Comparative Legal Guide to: Public Procurement 2015
28 Sweden Mannheimer Swartling Advokatbyrå AB: Johan Carle & Niklas Sjöblom 221
29 Switzerland Lenz & Staehelin: Dr. Astrid Waser & Dr. Benoît Merkt 226
30 USA Fried, Frank, Harris, Shriver & Jacobson LLP: James J. McCullough
& Michael J. Anstett 233
EDITORIAL
Welcome to the seventh edition of The International Comparative Legal Guideto: Public Procurement.
This guide provides the international practitioner and in-house counsel with acomprehensive worldwide legal analysis of the laws and regulations of publicprocurement.
It is divided into two main sections:
One general chapter. This chapter outlines EU public procurement rules.
Country question and answer chapters. These provide a broad overview ofcommon issues in public procurement laws and regulations in 29 jurisdictions.
All chapters are written by leading public procurement lawyers and industryspecialists and we are extremely grateful for their excellent contributions.
Special thanks are reserved for the contributing editors Donald Slater andEdward McNeill of Ashurst LLP for their invaluable assistance.
Global Legal Group hopes that you find this guide practical and interesting.
The International Comparative Legal Guide series is also available online atwww.iclg.co.uk.
Alan Falach LL.M.Group Consulting EditorGlobal Legal [email protected]
1.1 What is the relevant legislation and in outline what doeseach piece of legislation cover?
Federal, provincial and municipal authorities in Canada purchaseover $160 billion in goods and services each year. The leadinglegislation and policies that apply to federal contracts for goods andservices include the Financial Administration Act, (RSC 1985, c F-11) Government Contracts Regulations, (SOR/87-402) TreasuryBoard Contracting Manual, Department of Public Works andGovernment Services Act, (SC 1996, c 16) and the StandardAcquisition Clauses and Conditions (SACC) Manual. Mostpurchasing for line departments is done by Public Works andGovernment Services Canada (PWGSC). Other departments andagencies may only procure goods either when their own legislationspecifically permits or when an appropriate delegation of authorityhas been made by the Minister of PWGSC.
Each province and territory has its own separate legislation, withvarying degrees of complexity and formality. For example, inOntario, the Ministry of Government Services Act requires theprovincial government to follow policies and directives establishedby Management Board of Cabinet when undertaking procurementsrelating to the construction, renovation or repair of a public work.In Ontario, the Ministry of Government services is responsible fordeveloping the procurement policy framework for the Governmentof Ontario. In Ontario, procurements by broader public sectorentities including school boards and hospitals are subject to therequirements of the Ontario Broader Public Sector Directive whichincludes a Supply Chain Code of Ethics and 25 mandatoryrequirements.
Municipal contracting processes are generally governed bycommon law and codified in municipal purchasing bylaws,contracting policies and purchasing procedures. Some provinciallegislation such as the Ontario Municipal Act requiresmunicipalities to maintain policies related to the procurement ofgoods and services.
1.2 Are there other areas of national law, such asgovernment transparency rules, that are relevant to publicprocurement?
There are a number of other government policies as well asadministrative practices which must be observed in relation togovernment contracting. General statutes governing administrativeand criminal law are regularly applied in Canadian federal
procurement, as are general laws regarding disclosure of publicinformation.
The federal Integrity Framework legislated under the FederalAccountability Act, (SC 2006, c 9) applies to PWGSC managedcontracts and real property transactions. This includes:construction contracts; goods and services contracts; and realproperty transactions (leasing agreements, letting of space and theacquisition and disposal of Crown-owned properties).
Federal debarment of contractors that violate federal contractingrules is sharply on the rise. The recent IntegrityFramework[PWGSC Integrity Framework http://www.tpsgc-pwgsc.gc.ca/ci-if/ci-if-eng.html issued by Public Works andGovernment Services Canada is fuelled by a desire for governmentaccountability in an age of unprecedented government spending.Contractors must be keenly aware of this heightened level ofgovernment scrutiny regarding the performance of public contractsand have a practical approach in place to deal with allegedviolations. The consequences of debarment are significant andinclude the right of the government to terminate the contract fordefault and to demand the immediate return of any advancepayments made. The government also has the right to pursuewhatever other remedies are available to it, including to sue fordamages that it may incur as a result of the termination.
The federal government uses debarment to ensure that contracts areawarded only to “reliable and dependable” contractors. In simpleterms, debarment amounts to a government-wide ban. Federaldepartments are prohibited from doing business for a period of 10years with an individual contractor that has engaged in improperconduct. Although, debarments are not intended to be punitive, forcontractors whose livelihoods are even somewhat dependent onfederal contract performance, debarment is not only undesirable butcan be tantamount to professional and financial ruin.
Canada’s debarment regime is not codified under any particular statuteor regulation but rather is implemented by way of policy [IntegrityProvisions Policy PN-107U1 found at https:// buyandsell.gc.ca/policy-and-guidelines/policy-notifications/PN-107U1] administered througha series of certifications and standard terms and conditions given by thebidder or contractor in its proposal or contract with the government.
A contractor may be debarred from participating in governmentprocurements for 10 years from the date when the contractor or itsaffiliate has been convicted of an “integrity offence”. Integrityoffences include bribery of Canadian and foreign public officials,extortion, tax evasion, bid-rigging, forgery, fraudulent manipulationof stock exchange transactions, insider trading, falsification ofbooks, money laundering and acceptance of secret commissions.
Canada’s debarment regime is implemented by way of a series ofcertifications provided by the bidder in federal governmentsolicitation documents and resulting contracts. The bidder orcontractor, as the case may be, must certify in its bid (or contract)that neither it, nor any member of its board of directors or any of itsaffiliates has a conviction or been discharged of any of thefollowing integrity offences during the previous 10 years:
paragraph 80(1)(d) (false entry, certificate or return),subsection 80(2) (fraud against Her Majesty) or section154.01 (fraud against Her Majesty) of the FinancialAdministration Act;
section 121 (fraud against the government and contractorsubscribing to election fund), section 124 (selling orpurchasing office), section 380 (fraud against Her Majesty orsection 418 (selling defective stores to Her Majesty) of theCriminal Code;
section 119 (bribery of judicial officers, etc.), section 120(bribery of officers), section 346 (extortion), sections 366 to368 (forgery and other offences resembling forgery), section382 (fraudulent manipulation of stock exchangetransactions), section 382.1 (prohibited insider trading),section 397 (falsification of books and documents), section422 (criminal breach of contract), section 426 (secretcommissions), section 462.31 (laundering of proceeds ofcrime) or sections 467.11 to 467.13 (participation inactivities of criminal organisation) of the Criminal Code;
section 45 (conspiracies, agreements or arrangementsbetween competitors), section 46 (foreign directives), section47 (bid rigging), section 49 (agreements or arrangementswith federal financial institutions), section 52 (false ormisleading representation), section 53 (deceptive notice ofwinning a prize) of the Competition Act;
section 239 (false or deceptive statements) of the Income TaxAct;
section 327 (false or deceptive statements) of the Excise TaxAct;
section 3 (bribing of a foreign public official), section 4(accounting), or section 5 (offence committed outside Canada)of the Corruption of Corruption of Foreign Public Officials Act;or
section 5 (trafficking in substance), section 6 (importing andexporting), or section 7 (production of substance) of theControlled Drugs and Substance Act.
Bidders and contractors must provide a complete list of names of allindividuals who are currently their directors. When requested, thecontractor must provide the government with a Consent to aCriminal Record Verification form for directors or owners. As partof the criminal records verification, persons may be required toprovide fingerprints or further proof of identity to complete theverification process.
The contractor must diligently update, by written notice to thecontracting authority, the list of names of all individuals who aredirectors of the contractor during the entire period of the contract(or standing offer or supply arrangement).
A bidder that is unable to provide the certifications will be“debarred” or disqualified from the bidding process.
If, during the term of the contract, the contractor or its affiliate isconvicted of an integrity offence, the government has the right toterminate the contract for default, set aside the standing offer andterminate any call-ups or cancel the supply arrangement and terminateany resulting contracts. The government also has the right to demandthe immediate return of any advance payments made and to pursuewhatever other remedies are available to it, including the right to suefor damages that it may incur as a result of the termination.
In cases in which the conviction or act relates to an individual whois currently a director of the contractor and the individual resigns oris dismissed from the board of directors within a reasonable periodof time, the government may continue the contract, standing offeror supply arrangement with heightened scrutiny, subject to otherdefault conditions.
If, during the term of a contract, concerns emerge about thecontractor, the government retains the right to conduct an audit orprocurement review to verify the presence of irregularities.
Once the 10-year period has passed, in order to be eligible to dobusiness with the government, contractors are required to haveadequate compliance measures and controls in place to avoid thereoccurrence of the activity that resulted in the conviction.
Clearly a contractor that has been convicted of an integrity offencecannot solicit or enter into any contract with the government duringthe 10-year period of the ban. However, the debarment extends tothe affiliates of the contractor. The definition of affiliates is broadand includes parent companies, subsidiaries, sister companies anddirectors, provided that they have control of each other or are underthe common control of a third party. Indicia of control includesinterlocking management or ownership, identity of interests, familymembers, shared facilities and equipment or common use ofemployees.
Therefore, if the parent, subsidiary or sister company of thecontractor has been convicted of an integrity offence during the 10-year period, the contractor is ineligible to solicit or enter intocontracts with the government.
Similarly, a director who controls or possesses the power to controlthe contractor, its parent, subsidiary or affiliate and who has beenconvicted of an integrity offence will render the contractorineligible to participate in a solicitation or contract. In other words,only one convicted director is required to render the contractorineligible to conduct business with the government.
The contractor must also certify that within the past 10 years,neither it nor its affiliates have been convicted of any foreignoffence that Canada deems to have “similar constitutive elements”to the listed Canadian integrity offences. Foreign contractors mustcertify that they have not been convicted of foreign offences similarto the Canadian offences. Similarly, Canadian contractors mustobtain confirmation from their foreign affiliates that they have notbeen convicted of foreign offences similar to the integrity offences.This may result in a situation in which a Canadian contractorremains debarred by Canada for a 10-year period as a result of aforeign conviction against a foreign affiliate even though theCanadian contractor was not involved in the foreign offence.Further, this will have an impact on contractors in Canada withsubsidiaries and sister companies operating in jurisdictions with ahigh risk of corruption.
The contractor must ensure that all subcontracts include integrityprovisions that are “no less favourable to Canada” than theprovisions that are included in its contract with the government. Inthis way subcontractors are now indirectly required to comply withthe integrity provisions, and contractors are responsible forensuring this compliance. Bidders are encouraged to give earlyconsideration to the integrity terms that are to be included in theirsubcontracts and to ensure that subcontractors can meet thoserequirements.
The government has retained for itself the right to enter into acontract with an otherwise non-compliant bidder when it is in the“public interest” to do so, which includes when no one else iscapable of performing the contract or for reasons related toemergency, national security, health and safety or economic harm.
Debarment for 10 years is a harsh penalty that can have devastatingand long-lasting effects on a contractor. Contractors can avoid orminimise exposure by taking the following proactive measureswhen legitimate concerns or potential issues arise:
Conducting a thorough internal investigation as soon aspotential violations are known or suspected.
Self-reporting to the government, under certain circumstances,on a voluntary basis.
Preparing a complete and thorough assessment of all possiblelegal defences and equitably mitigating factors, includingwhether a public interest exemption applies.
In sum, a robust ethics and compliance programme combined witha practical legal strategy will assist contractors in navigating therough seas associated with this new debarment regime in Canada.
Under federal and provincial lobbying legislation, lobbyistregistration is required (subject to certain thresholds andexemptions) in respect of communications and other types ofinteractions with a federal public office holder relating to federal orprovincial government contracts.
1.3 How does the regime relate to supra-national regimesincluding the GPA, EU rules and other internationalagreements?
A significant new development is the application of the recently signedCanada EU Comprehensive Economic And Trade Agreement (CETA)http://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/ceta-aecg/index.aspx? lang=eng) to all levels ofsub-federal procurement. This will be the first time that sub-federalprocurement is subject to the disciplines of an international treaty. Itwill significantly open up provincial, utility and municipalprocurements to European suppliers. The Agreement imposessignificant standards on the conduct of tendering processes andcontract awards on federal, provincial and municipal procurements.
Procurement by the federal government is subject to therequirements of the North American Free Trade Agreement, theWorld Trade Organization – Agreement on GovernmentProcurement, and the Agreement on Internal Trade.
The contracting practices and contract awards of federal, provincial,and municipal governments and academia, school boards andhospitals are subject to the requirements in the Agreement onInternal Trade. Its purpose is to provide equal trade opportunitiesto domestic suppliers regardless of their province or territory oforigin. It does not apply to foreign suppliers, although foreignsuppliers with offices in Canada, Canadian subsidiaries, or theirCanadian distributors can take advantage of this Agreement.
Provincial and territorial government tendering practices andcontract awards are subject to the obligations and proceduralprotections set out in the Canada-United States Agreement onGovernment Procurement. See: http://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/other-autre/us-eu.aspx?lang=eng.
The New West Partnership Trade Agreement (NWPTA) is an accordbetween the provincial governments of British Columbia, Albertaand Saskatchewan. The NWPTA imposes obligations and standardson these provincial governments to ensure that there is nodiscrimination in the procurement practices and contract awards inregard to suppliers from each of these provinces.
The Atlantic Procurement Agreement - A Memorandum of Agreementon the Reduction of Interprovincial Trade Barriers is a procurementaccord between the governments of the Atlantic provinces.
1.4 What are the basic underlying principles of the regime(e.g. value for money, equal treatment, transparency) andare these principles relevant to the interpretation of thelegislation?
The primary procurement obligations imposed by all agreementsand provincial, federal and municipal laws are: non-discriminationbased on country and/or province of origin; an open, or transparentopen tendering process; a competitive procurement; and a fairprocurement process.
Procurement laws generally provide that, to be considered for anaward, a bid must comply with all mandatory requirements in theRequest for Proposal. In general, an award is to be made to thequalified bidder whose bid is responsive to the terms of the proposalor solicitation and is more advantageous to the governmentconsidering only price and the non-price related factors included inthe bid document. Bidders who are debarred, suspended ordeclared ineligible may not receive a contract award. In additionthere are procedures to allow a department to establishprequalification requirements, which could have the effect ofexcluding non-qualified bidders.
1.5 Are there special rules in relation to procurement inspecific sectors or areas?
In regard to Canadian defence procurement, the DefenceProduction Act (RSC 1985, c D-1) gives the Minister of PWGSCthe responsibility to administer the Act and the exclusive authorityto buy or otherwise acquire defence supplies and construct defenceprojects required by the Department of National Defence. There aresecurity requirements for individuals, facilities and controlledgoods and technology. The Industrial Security Program providingsecurity screening services for government contractors before theyare entrusted with Protected and Classified information and assetsof the Government. The Controlled Goods Program is Canada’snational domestic industrial security and prevents the proliferationof tactical and strategic technology and assets, including missiletechnology, military equipment and related intellectual property.See: http://ssi-iss.tpsgc-pwgsc.gc.ca/dmc-cgd/index-eng.html. OurFirm is registered to receive controlled goods and technology underthe Controlled Goods Program. The Joint Certification Programprotects unclassified military critical technical data from commonadversaries but allows the data to be transmitted to private U.S. andCanadian entities that have a legitimate need for them.
The federal government also maintains an offset regime for defenceprocurement. Companies that bid on defence and Canadian CoastGuard contracts are well aware of Canada’s Industrial and RegionalBenefits (IRB) Policy, which requires them to undertake businessactivities in Canada that are valued at 100 per cent of the primecontract with Public Works and Government Services Canada.Under Canada’s new Defence Procurement Strategy, IRBs, nowcalled “Value Propositions for Industrial Technological Benefits(ITBs)”, will, for the first time, be a rated requirement in theevaluation of a bidder’s proposal. This means that bidders with anotherwise competitive bid are now exposed to losing to acompetitor whose bid contains a stronger Value Proposition. Therules are still being developed and therefore bidders would be welladvised to keep abreast of the implementation of this new ratedrequirement. Bidders should ensure that they understand up frontthe Value Proposition requirement in the solicitation document aswell as rules for challenging it, if necessary. Finally, Canada’s newIntegrity Provisions will now apply to prime contractors that flowdown some of their offset requirements to subcontractors; primecontractors would therefore be well advised to ensure that their
subcontractors are willing and able to sign onto terms similar tothose set out in the Integrity Provisions. Failure to do so couldresult in the termination of the contract and imposition of damagesvery unfavourable to the prime contractor.
2 Application of the Law to Entities and Contracts
2.1 Which public entities are covered by the law (aspurchasers)?
For federal contracts, almost all departments, agencies and state-owned enterprise are considered contracting authorities and subjectto the contracting rules and bid and contract award reviewmechanisms of the Canadian International Trade Tribunal.
Section 9 of the Department of Public Works and GovernmentServices Act (SC 1996, c 16) gives the Minister of Public Worksand Government Services exclusive responsibility for theprocurement of all goods as described in the Act. Otherdepartments and agencies may only procure goods either when theirown legislation specifically permits or when an appropriatedelegation of authority has been made by the Minister of PublicWorks and Government Services.
All municipal and provincial government bodies includingacademic school boards and Crown corporations are publicpurchasers governed by the applicable procurement regime.
2.2 Which private entities are covered by the law (aspurchasers)?
There are no private entities which are covered by the law (aspurchasers). However, a private entity procuring on behalf of apublic contracting entity may be subject to the procurement laws.
2.3 Which types of contracts are covered?
For all levels of government, the procurement rules cover virtuallyall contracts for goods, services and construction contracts.Nonetheless there are exemptions for certain goods and serviceswhich are very fact-specific and vary according to the publicpurchaser involved.
2.4 Are there financial thresholds for determining individualcontract coverage?
In general, the federal government may enter into contracts withoutsoliciting bids where the value of the contract does not exceed$25,000.
In most provinces, any contract valued at $100,000 or greater mustbe subject to a competitive process, but individual governmentdepartments may establish their own, more stringent rules for lowervalues.
2.5 Are there aggregation and/or anti-avoidance rules?
There are laws which prevent the manipulation of the tenderingprocess so as to avoid the application of tendering and contractaward rules under the trade agreements and domestic laws.
The laws in Canada prohibit any entity or individual from denyingor restricting free access to the government procurement markets.Information on government procurement opportunities should bereleased to the public in a timely manner through the news mediadesignated by the authorities supervising the particular governmentprocurement.
Suppliers involved in government procurement are prohibited fromcolluding with each other to the detriment of the interests of thegovernment, the public or third parties. Public purchasers areprohibited from breaking up the whole procurement into smallprocurement packages or taking other measures, for the purpose ofcircumventing the public tender requirement.
2.6 Are there special rules for concession contracts and, if so,how are such contracts defined?
Concession contracts in Canada grant a licence to operate ongovernment owned property but do not carry any inherent propertyrights. A concession agreement contains a limited right to use theproperty for a specific purpose; management and control of theproperty are retained by the government owner; the governmentowner has the ability to revoke at will the right to use the land; andthere is an inability of the property user to transfer the right to usethe land to others.
Public-Private Partnerships (P3s) have increasingly become acommon structure for the delivery of public infrastructure. PPPsoffer the opportunity for governments and non-governmentalbodies to achieve more efficient projects by sharing risks andresponsibilities differently as compared to traditional procurement.These types of structures also can offer better protection againstschedule and cost overruns, and give the private sector the chanceto bring innovation to the design, construction, operation andmaintenance of public infrastructure.
In summary, Public-Private Partnerships (P3s) are a long-termperformance-based approach to procuring public infrastructurewhere the private sector assumes a major share of the risks in termsof financing and construction and ensuring effective performance ofthe infrastructure, from design and planning, to long-termmaintenance.
In practical terms, this means that:
Governments do not pay for the asset until it is built.
A substantial portion of the cost is paid over the life of theasset and only if it is properly maintained and performsaccording to specifications.
The costs are known upfront and span the life-cycle of theasset.
2.7 Are there special rules for the conclusion of frameworkagreements?
Yes. The federal government as well as some provincial andterritorial governments and municipalities have their own rules forthe conclusion of framework agreements which can be found in thecitations below.
PPP Canada - a federal Crown corporation has the mandate topromote public private partnerships in infrastructure projects anddistribute federal investments in major projects. The corporationworks in partnership with other jurisdictions and its counterparts inprovincial governments. It has distributed most of the $1.25 billionin funding from the 2007 budget to more than a dozen differentprojects across the country. It also received a new $1.25-billiongrant to distribute for future P3 projects in the coming years.
An Act respecting Infrastructure Québec – came into forceon March 24, 2010, replacing Bill 61 below.
An Act Respecting Transport Infrastructure Partnerships(2000).
Bill 61: An Act respecting the Agence des partenariatspublic-privé du Québec.
New Brunswick
New Brunswick Highway Corporation Act (1995).
www.gnb.ca/0062/acts/acts/n-05-11.htm.
2.8 Are there special rules on the division of contracts intolots?
Yes, depending on the procuring entity. Where the services aredivided into several lots, each one the subject of a contract, thecumulative value of all the lots must be taken into account indetermining whether the relevant threshold has been reached.
3 Award Procedures
3.1 What types of award procedures are available? Pleasespecify the main stages of each procedure and whetherthere is a free choice amongst them.
There are a myriad of procedures available for Canadiancontracting authorities ranging from formal tendering to negotiatedprocurements. Practically speaking, the leading forms of procedureare tenders, requests for quotations, requests for proposals, standingoffers and supply arrangements. Short listing by way of requests
for qualifications may also be used. In very specialised or lowthreshold procurements, sole sourcing may be an option. Someprovinces, such as the Government of Ontario, have recently beenusing more negotiated procurements. This is particularly so forprocurements conducts by Infrastructure Ontario.
3.2 What are the minimum timescales?
The setting of a solicitation closing date takes into account the levelof complexity of the procurement and the extent of subcontractinganticipated. Canadian law requires that sufficient time must beallowed for a supplier to obtain the solicitation and any additionalmaterial and to prepare and submit a response. For procurementsthat are not subject to the NAFTA or the WTO Agreement onGovernment Procurement, the solicitation period should not be lessthan 15 calendar days from the date the requirement is publiclyposted. For competitive open procurements that are subject to theCETA, NAFTA and/or WTO-AGP, the solicitation period must notbe less than 40 calendar days from the date that the notice of theprocurement is published.
3.3 What are the rules on excluding/short-listing tenderers?
More complex and higher value solicitations may use pre-qualification processes. In general, prequalification requirementsshould be non-discriminatory, set out in clear terms the conditionsfor participation in the tendering process and be limited to thosewhich are essential to ensure that the supplier’s ability to fulfil thecontract in question.
3.4 What are the rules on evaluation of tenders?
In Canada, the main purpose of a tender evaluation is to determinethe best responsive bid, in accordance with the evaluation andselection methodology specified in the solicitation document,among the tenders submitted before the bid closing time on the datespecified in the bid solicitation. The responsive tender offering thebest value to Canada may or may not necessarily be the one with thelowest price. In order to accurately determine best value, a logicalsystematic evaluation procedure covering all aspects of theevaluation process must be followed. Canadian procurement lawsrequire a fair, accurate and transparent evaluation of tenders.Evaluation of tenders must be in accordance with the proceduresstipulated in the bid solicitation. They must be checked forresponsiveness to the contractual, technical and financialrequirements of the bid solicitation. Before starting the actualtechnical and financial evaluation of bids, it is necessary to ensurethat all the information required at bid closing is available and readyto be transmitted to the evaluators. It is the responsibility of thecontracting entity to determine whether the bids received arecomplete, as specified in the bid solicitation, before further detailedevaluation of the bids. This means, for example, verifying:
i. that required certifications or required securities areincluded;
ii. that bids are properly signed;
iii. that the bidder is properly identified (particularly importantin the case of joint ventures);
iv. acceptance of the terms and conditions of the bid solicitationand resulting contract, such as bid validity period;
v. ability to meet a clearly specified critical delivery schedule;
vi. whether the bid is conditional (e.g. limitation of liability); or
vii. that all supporting documents, required by the bidsolicitation to determine technical responsiveness, have beensubmitted.
Generally, financial bids should not be sent to the technicalevaluators until after completion of the technical evaluation.
3.5 What are the rules on awarding the contract?
Federal, provincial and municipal procurement laws generallyprovide that to be considered for an award, a bid must comply withall mandatory requirements in the Request for Proposal or othersolicitation document. In general, an award is to be made to thequalified bidder whose bid is responsive to the terms of thesolicitation and is more advantageous to the governmentconsidering price and the non-price-related factors included in thebid document. Bidders who are debarred, suspended or declaredineligible may not receive a contract award.
3.6 What are the rules on debriefing unsuccessful bidders?
Under Canadian federal, provincial and municipal procurement law,the purpose of a debriefing is to explain to unsuccessful bidderswhy their bid was not accepted and to enable the unsuccessfulbidder to make a decision whether to proceed with a challenge ofthe contract award. Every solicitation must include a provisionstating that bidders may request a debriefing about the results of thesolicitation. A written debriefing is usually done in the form of aregret letter that is sent out to each unsuccessful bidder. In the caseof a complex procurement, when a solicitation is conducted inphases, the contracting officer may notify unsuccessful bidders atthe end of each phase and provide a debriefing upon request. Adebriefing will generally include: the name of the successful bidder;the total estimated cost of the contract, the unit price/labour rate ofa Standing Offer, the firm or ceiling unit prices or labour rate of aSupply Arrangement; the total evaluated price of the successfulbidder and the total score, if applicable; very general non-confidential information on the relative strengths of the successfulbid; and an outline of the reasons the bid of the bidder beingdebriefed was not successful according to the evaluation criteriaand selection methodology. Usually, scores achieved on all ratedcriteria will be provided with sufficient detail for the bidder tounderstand why those scores were assigned.
3.7 What methods are available for joint procurements?
Joint procurements by more than one government entity occur in avariety of contexts. For example, standing offer regimes enablesuppliers to be pre-qualified to provide goods and services at setprices to numerous government entities for a specified term.
Many municipalities participate in joint procurements of transitsystems governed by a Governance Agreement. For example, inOntario, Metrolinx, a provincial Crown corporation, acts as thefacilitator and conducts an open and competitive procurement fortransportation services and infrastructure in accordance withOntario procurement policies.
3.8 What are the rules on alternative/variant bids?
A variant bid is where bidders have proposed an alternative solutionto that set out by the contracting entity. Canadian procurement lawgenerally permits a contracting authority to accept variant bidsprovided the solicitation document expressly permits bidders to
submit variants. It is therefore imperative that solicitationdocuments set out clearly what discretion the procuring entity mayexercise in relation to variant bids. The solicitation documents mustset out the minimum requirements to be met by the variants and anyspecific requirements for the presentation of a tender whichcontains variants. The contracting authority should also specifywhether bidders must also submit a standard bid alongside theirvariant bid. All variant bids should be evaluated using the samecriteria as the standard bids and compared on a like-for-like basis.This can often be hard to achieve unless the parameters set aresufficiently clear. The procuring entity does not have to accept avariant bid if it is the highest scoring response, so long as it hasreserved this right in advance.
3.9 What are the rules on conflicts of interest?
There are a number of statutes that govern how businesses deal withthe Government of Canada. Legislation includes the FederalAccountability Act, the Conflict of Interest Act, the CanadaElections Act, the Lobbyists Registration Act (the “Lobbying Act”),the Public Service Employment Act, the Access to Information Act,the Public Servants Disclosure Protection Act and the FinancialAdministration Act. The Federal Accountability Act prohibits allcorporate and union direct or indirect financial contributions of anykind to candidates or political parties at the federal level. TheConflict of Interest Act (the “CIA”) applies to public office holders(“POHs”) and certain cabinet appointees. POHs include Ministers,parliamentary secretaries and ministerial staff (whether or not paidand whether or not full-time), members of Parliament and membersthe Senate. The CIA creates an independent Commissioner ofConflicts of Interests and Ethics with broad investigatory andenforcement powers. POHs are prohibited from exercising anofficial power to further the POH’s private interests or any otherperson’s private interests. POHs cannot accept gifts from personsother than family and friends unless the gifts are a normalexpression of courtesy or protocol. Reporting POHs cannot act asdirectors of a corporation or other enterprise, hold office in a unionor professional organisation, act as a paid consultant or be an activemember of a partnership. Post-employment prohibitions includeproviding advice to clients based on non-public informationobtained while a POH, acting for a person in respect of which theCrown is a party or taking employment with a person with whomthe PHO had direct and significant official dealings within the last12 months of acting as a PHO.
The Lobbying Act creates an independent Commissioner ofLobbying with broad investigatory and enforcement powers. Forinstance, the Commissioner has the authority to confirm withdesignated public office holders (“DPOHs”) the accuracy ofdisclosure provided by registered lobbyists. The Lobbying Actimposes rules that are more stringent than the previous regulatoryregime surrounding lobbyists. For example, lobbyists will nolonger be able to work on a contingency fee basis and there are newmonthly reporting requirements. In addition, the Lobbying Actprohibits certain DPOH from lobbying the federal government forfive years after leaving their posts. Certain corporate executivesand directors may be deemed to be lobbyists and be required toregister pursuant to the Lobbying Act. Penalties and fines for non-compliance with the Lobbying Act have been increased to up to$50,000 and/or six months imprisonment for summary convictionoffences, up to $200,000 and/or two years for indictable offences,and a two-year prohibition on lobbying if convicted of an offenceunder the Lobbying Act. Reports under the Lobbying Act include adeclaration that the lobbyist is not receiving payment on acontingency basis. Former DPOHs must disclose former offices
held and the date they left each position. Monthly returns must listevery prescribed contact with a DPOH, the name of the DPOH, thedate of the communication and particulars of the subject matter ofthe communication. Filings will be due within 10 days of each newundertaking and within 15 days of each month end.
Provincial and municipal governments have lobbyist registrationlegislation in effect, albeit not as stringent as the federal regimesummarised above.
4 Exclusions and Exemptions (including in-house arrangements)
4.1 What are the principal exclusions/exemptions?
Sole-sourcing is not prohibited and is permissible in very limitedcircumstances. Generally, sole-sourcing is permitted only: whereno competition exists; where the procurement is being conducted incircumstances of emergency or unforeseeable urgency; where sole-sourcing is necessary to protect exclusive rights such as patents,copyrights or proprietary information; where no other valid bids arereceived; or where the procurement entails additional deliveriesfrom the original supplier as replacement parts or continuingservices.
4.2 How does the law apply to “in-house” arrangements,including contracts awarded within a single entity, withingroups and between public bodies?
If one government authority procures goods or services throughanother, that procurement may be subject to the GovernmentContracts Regulations (SOR/87-402) and other federal orprovincial legislation. In general, in house procurementarrangements are very difficult to challenge.
5 Remedies
5.1 Does the legislation provide for remedies and if so what isthe general outline of this?
Certain remedies exist under the trade agreements andimplementing federal or provincial legislation. For example,pursuant to the Canadian International Trade Tribunal Act, federalgovernment contracts may be reviewed by the CanadianInternational Trade Tribunal with a further right of review by theFederal Court of Appeal.
For example the Canadian International Trade Tribunal (CITT) mayaward the complainant its reasonable costs incurred in preparing aresponse to the solicitation. Furthermore, the CITT mayrecommend such remedy as it considers appropriate, including forexample, the re-solicitation of the designated contract, that thedesignated contract be terminated and that the contract be awardedto the complainant. The CITT may also recommend that thecomplainant be compensated for the loss of the contract or for theopportunity it lost.
5.2 Can remedies be sought in other types of proceedings orapplications outside the legislation?
Unsuccessful bidders that believe their bids should have beenaccepted have the following legal recourse available to them:
(i) to commence an action for damages based on breach ofcontract or claims in tort in one of the provincial superiorcourts;
(ii) to commence an action for damages based on breach ofcontract or claims in tort in the Federal Court of Canada;
(iii) to commence an application for judicial review in the FederalCourt or provincial courts; or
(iv) to file a complaint with the Canadian International TradeTribunal protesting the contract award, solicitation documentor conduct of the procurement.
5.3 Before which body or bodies can remedies be sought?
The CITT has the jurisdiction to review federal contract awards andprocurements. The provincial superior courts and Federal Court ofCanada have the authority to hear claims by disappointed suppliersthat solicitation processes or contract awards are in violation oftheir common law rights which impose implied duties on thegovernment contracting entity when conducting the procurementprocess and in awarding the contract.
5.4 What are the limitation periods for applying for remedies?
There is a 10-working-day deadline to file a complaint with theCITT. A disappointed bidder must file its complaint within 10working days of the date the complainant knew or should haveknown of the grounds for the complaint. Extreme care is requiredto ensure the deadlines are met as they are strictly enforced and theconsequences of non-compliance include rejection of the complaintby the CITT. Accordingly, suppliers wishing to file a protest mustmove quickly upon learning of the basis for the complaint.
Applications for judicial review to the Federal Court must be filedwithin 30 days of the date of the contract award or otherprocurement decision under review. Provincial judicial reviewstatutes impose different time delays for their provincial courts.
Federal and provincial statutes impose different delays forcommencing actions in tort or in breach of contract, each of whichmay vary between 1 and 6 years.
5.5 What measures can be taken to shorten limitationperiods?
Contractual provisions can be imposed to shorten statutorylimitation periods. The Ontario Court of Appeal addressed thisissue in its recent decision in Boyce v. The Co-Operators InsuranceCompany, 2013 ONCA 298. In order to be valid, the Court ofAppeal stated (at para. 20) that a contractual limitation periodprovision must simply:
“[I]n ‘clear language’ describe a limitation period, identify thescope of the application of that limitation period, and exclude theoperation of other limitation periods.”
5.6 What remedies are available after contract signature?
The CITT may order that a contract be cancelled, that a bid be re-evaluated, that a full or partial retender be conducted, that the contractbe awarded to the complainant and/or that monetary compensation bepaid to the complainant. There is also a procedure for a successfulcomplaint in obtaining a cost award from the Tribunal for the cost ofpreparing its bid and pursuing a complaint to the Tribunal.
At common law, the procuring entity can be sued by theunsuccessful bidder in the courts for damages and lost profits.
5.7 What is the likely timescale if an application for remediesis made?
Complaints to the CITT must be resolved between 90 and 130 days.This does not include the time for any subsequent application forjudicial review of the decision of the CITT by the Federal Court ofAppeal. In general, applications for judicial reviews before theFederal Court of Canada and provincial courts can take between 18months and two years. Claims for damages in the courts may takeas long as five or six years to resolve, or longer, depending on theircomplexity and the court’s availability.
5.8 What are the leading examples of cases in whichremedies measures have been obtained?
In Canada, the law regarding the protest process is quite mature andextensive and so individual rulings are relatively less important.
Envoy Relocation Services Inc. v. Canada (Attorney General), 2013ONSC 2034, involved a dispute between Envoy RelocationServices Inc. and the Canadian federal government.
In 2002, and again in 2004, Envoy was the unsuccessful bidder fortwo lucrative, multi-year contracts to assist in the relocation of mostarmed forces and government personnel to take new postings acrossCanada and around the world. Following an investigation andreport by the Auditor General of Canada into the 2004 contractingprocess, Envoy sued the federal government claiming that Envoyhad been unfairly denied the contracts, which they should havewon.
The judge agreed with Envoy and found that governmentemployees had intentionally steered the deal to another companywhich had inside knowledge of key Property Management Servicesvolumes. The Court also found that the government had a conflictof interest when it awarded the contract. In the result, thegovernment was ordered to pay Envoy approximately $29.2 millionas compensation for lost profits.
5.9 What mitigation measures, if any, are available tocontracting authorities?
The use of Task Authorizations (TAs) is useful to assist contractingauthorities with the mitigation of contractual risks as a result ofbetter-defined tasks, the establishment of a level of effort on a pertask basis and more precise pricing for each specific task therebyensuring better management of the contract. When they areproperly used, contracts with TAs provide a structured frameworkoffering operational speed and flexibility. The improper use ofcontracts with TAs will, however, lead to major problems betweenthe government and its suppliers.
Contracting authorities are increasingly seeking to insert terms intosolicitation documents which seek to limit or exclude their liabilityto a successful supplier in the event that the contract were to be setaside at a later date. However, in Tercon Contractors Ltd. v. BritishColumbia (Transportation and Highways), [2010] 1 SCR 69 theSupreme Court of Canada held that the contracting authority, theDepartment of Transportation and Highways of British Columbia,could not rely on an exclusion clause to avoid liability for an unfairtender, and substantial damages were awarded against thatDepartment.
6 Changes During a Procedure and After a Procedure
6.1 Does the legislation govern changes to contractspecifications, changes to the timetable, changes tocontract conditions (including extensions) and changes tothe membership of bidding consortia pre-contract award?If not, what are the underlying principles governing theseissues?
The Canadian government procurement system has extensive andspecialised rules and case-law directly governing contractadministration, including changes to timetables, specifications andchanges to contract terms. Changes prior to contract award must beannounced to all bidders through amendments to the solicitationdocuments.
It is generally permitted to change consortium members (oridentified sub-contractors) in the course of a procurement processprovided that:
1. The newly formed consortium continues to meet any pre-qualification/selection criteria used for the initial shortlistingof bidders.
2. The consortium complies with any formal notificationrequirements to the contracting authority as set out in thetender documents.
3. The newly formed consortium meets any minimum levelsimposed at the pre-qualification/selection stage, e.g. anyminimum turnover or minimum experience requirements.
Procuring entities usually make it clear in the tender documents thatany change in consortium membership (or identified subcontractor)must be notified to the authority for prior approval. The newlyformed consortium would need to comply with any formalitiesrequired by the contracting authority in this respect.
6.2 To what extent are changes permitted to final tenders(pre- and post-contract award)?
Government contracting authorities are typically under an impliedduty to reject non-compliant tenders in the tender process. Thisimplied duty prohibits the post-bidding correction of materialdefects in a tender. While the practice of correcting tender defectsis often justified as a “clarification” or “correction” exercise aimedat addressing “minor irregularities”, these post-tendering activitiesmay also constitute illegal “bid repair” and result in significant legalliabilities to the purchasing institution.
Different rules would apply to negotiated procurements.
6.3 To what extent are changes permitted post-contractsignature?
Government contracting authorities are typically restricted frommaking material post-bid changes to a tendered contract since thecontract awarded under a formal binding bidding process should beconsistent with the contract that was originally put to tender. Anypost-signing changes to the awarded contract can undermine theintegrity of the formal bidding process and the equal footing uponwhich all bidders are entitled to compete.
That being said, the procuring entity is permitted to obtain allupdates to the software procured in the original solicitation.
6.4 To what extent does the legislation permit the transfer ofa contract to another entity post-contract signature?
When bidding on government contracts, special care should betaken to consider the consequences of any decision to restructurethe bidding entity during the procurement process. Anti-assignmentclauses in federal government solicitation documents will be strictlyinterpreted by the courts to allow disqualification of a potentialsupplier, even though the bidder would have been awarded thecontract on the basis of the highest financial and technical score.Through recognising the public interest in awarding the contract tothe lowest-cost technically compliant proposal, the courts have heldthat this does not override the paramount objective of ensuringintegrity in the process of public procurement.
Of relevance is the recent decision of the Federal Court in SelexSistemi Integrati S.p.A. (Selex) v. Attorney General of Canada andEADS Deutschland GmbH (EADS) 1 2014 FC 263.
On January 26, 2012, Public Works and Government ServicesCanada (PWGSC) issued an RFP for the procurement of radar forCanadian Air Force military bases. The RFP incorporated by wayof reference an anti-assignment clause in section 05.8 of PWGSC’sStandard Acquisition Clauses and Conditions (SACC), which statedthat “[a] bid cannot be assigned or transferred in whole or in part”.Selex, an Italian company, and four other pre-qualified bidderssubmitted bids by the closing date on May 2, 2012.
In October 2012 PWGSC evaluated the bids and found that Selexhad submitted a lower price, but that EADS had scored higher onthe technical components. As a result, PWGSC scored Selex’s bidat 86.5 while EADS’s bid received a lower score of 85.74.
On January 1, 2013, seven months after bid closing but prior tocontract award (on March 13, 2013), Selex underwent a corporatereorganisation, as did a number of its sister companies, all of whichwere owned by Finmeccanica S.p.A. (Finmeccanica). Prior to thereorganisation, Finmeccanica operated its defence businessoperations through three Italian companies: Selex; Selex ElsagS.p.A. (Elsag); and Selex Galileo (Galileo). All three companieswere wholly owned by Finmeccanica, and each had at least onewholly-owned non-Italian subsidiary. In the case of Selex, itswholly-owned subsidiary was Selex Systems Integrations Inc., aU.S. corporation.
Finmeccanica consolidated all of its defence companies to createone European entity, Selex ES S.p.A. (Selex ES). Elsag and Galileomerged into Selex ES and thereafter ceased to exist. In the case ofSelex, all of its assets and personnel were transferred to Selex ES,though Selex as a legal entity remained in existence with no assetsor staff.
On January 9, 2013, Selex advised PWGSC of the reorganisation,arguing that since there had been the sale of the whole businesscomplex of Selex, this was substantially the same as if Selex hadmerely merged with Selex ES, the only difference being that Selexremained as a legal entity with no assets or staff; but that in factSelex ES had become the interlocutor with PWGSC and that all itsassets and liabilities (including those in the bid) had been assignedto Selex ES. At the same time Selex advised PWGSC that it nolonger had the ability to perform the obligations in the RFP, as allof its technical and industrial capabilities had been transferred toSelex ES.
On March 13, 2013, PWGSC awarded the contract to EADS at acost of $75,498,650. PWGSC advised Selex that its bid had beenrendered non-compliant because it had contravened the explicitprohibition in the RFP on transfer or assignment of a bid; and thatin any event, Selex was no longer capable of performing the workcontemplated by the RFP since it had transferred its business,
including its technical and industrial capabilities, as well as the biditself.
Selex applied for judicial review of PWGSC’s decision to declareits bid non-compliant and sought an order to terminate the contractaward and award the contract to Selex, or, alternatively, to directPWGSC to re-evaluate Selex’s bid. On March 19, 2014, the FederalCourt dismissed the application.
In regard to the first issue, whether PWGSC had erred in itsinterpretation of the anti-assignment clause in the SACC, the Courtheld this to be a question of law and said that PWGSC was correctin its interpretation that the transfer of virtually all of Selex’s assetsto a newly created sister company, Selex ES, during the biddingprocess was contrary to that clause. It held that “[a] transfer orassignment of a bid, in whole or in part, has the practical effect ofchanging the bidder during the bidding process. Moreover, atransfer or assignment of virtually all of the bidder’s assets has thepractical effect of rendering the bidder no longer capable of meetingthe technical and management requirements of the RFP” (para. 39).
With respect to the second issue, whether PWGSC had erred in itsapplication of the non-assignment clause, the Court held that it wasreasonable for PWGSC to decide that Selex had rendered its bidnon-compliant by its corporate reorganisation and therefore hadbreached the anti-assignment clause. What was relevant was thatthe evidence demonstrated that Selex had transferred its businessand assigned its bid to Selex ES. Selex could no longer be awardedthe contract as it had become a shell company when it divesteditself of all of its assets and personnel. Nor could PWGSC awardthe contract to Selex ES, as it did not have standing during thebidding process and was not a pre-qualified bidder.
The Court dismissed Selex’s argument that for all intents andpurposes the transfer of its business to Selex ES had the practicaleffect and operating consequence of a merger, as Selex ESsucceeded Selex in all of its rights, obligations, contracts, tenders,proposals and offers (including Selex’s bid in relation to the RFP).The Court agreed with PWGSC that the questions as to the natureof the reorganisation and especially whether a merger should beenconsidered compliant with the non-assignment clause wereirrelevant. The Court observed that Selex and/or Finmeccanicawere fully aware of the difference between a merger and a sale ofassets, and noted that they nonetheless proceeded to make adecision to merge Elsag and Galileo into Selex ES, but not to do soin the case of Selex. In the Court’s view, Selex had failed toproperly consider the consequences of that decision as it related tothe bid in question. The Court concluded that any failure byPWGSC to have proceeded as it did could very well have beenconsidered unfair toward the other bidders.
7 Privatisations and PPPs
7.1 Are there special rules in relation to privatisations andwhat are the principal issues that arise in relation tothem?
No. Privatisation in Canada and the provinces are addressedthrough a myriad of statutes and regulations relating to procurementlaw, fiscal law, intellectual property law and government property.
7.2 Are there special rules in relation to PPPs and what arethe principal issues that arise in relation to them?
Canada has emerged as a leader in the creation of efficient public-private partnerships (P3s) for building infrastructure. The
Government of Canada is committed to supporting publicinfrastructure projects, using the Public-Private Partnership (P3)model that delivers maximum value. To this end, it created PPPCanada, a federal Crown Corporation, to improve the delivery ofpublic infrastructure by achieving better value, timelines andaccountability through P3s.
The public sector has turned to P3 projects as an alternative way tobuild and maintain roads, institutions, waste management facilitiesand other public infrastructure in Canada’s vast geographicterritory. Traditional infrastructure projects are built by privatefirms funded by the public sector. In contrast, P3 projects arefinanced by the private sector, which is paid partly depending uponthe results – such as the completion of the project on time and on-budget, and/or ongoing operations and maintenance.
P3s have generally been used to deliver social infrastructure(hospitals, schools) and to a lesser extent transport projects (roads,urban transit infrastructure).
The provincial governments – especially Alberta, British Columbia,Ontario and Quebec – continue to be the most significant publicplayers in the Canadian P3 arena. Further federal support has comefrom the P3 Canada Fund, which has to date committed over $700million covering 15 projects in six provinces and territories.
Municipalities collectively spend as much on infrastructure as theprovinces, but they have been slow to adopt P3 projects. However,the municipal P3 market is expanding, with 15 projects launchedbetween 2009 and 2012.
8 Enforcement
8.1 Is there a culture of enforcement either by public orprivate bodies?
There is a strong culture of enforcement among suppliers in theCanadian system. That said, though there are several hundreds ofcontracting actions every year in the Canadian federal procurementsystem, only a small percentage are every protested.
There is a strong and growing focus of Canadian enforcementagencies on misconduct by contractors who offer or supplygoods/services to the Canadian governments. In this regard see theresponse to question 1.2 regarding the introduction by theGovernment of Canada of the new Integrity Provisions which isCanada’s debarment regime for contractors which are deemedirresponsible ad with which the government does not want to dobusiness.
8.2 What national cases in the last 12 months haveconfirmed/classified an important point of publicprocurement law?
The Supreme Court of Canada has released a precedent-settingjudgment in the area of contract law. In Bhasin v. Hrynew, 2014SCC 71, the Court recognised for the first time that there is ageneral organising principle of good faith in the performance ofcontracts throughout Canada.
The Bhasin case will now become very important for Canadianbusinesses. All contracts throughout Canada are now subject to theduty of, at a bare minimum, honest performance, which the Courtheld cannot be excluded by the terms of an agreement. Businesseswill need to consider whether they are discharging this duty whencarrying out a contract. If a given course of action could be
construed as deceptive, businesses should avoid pursuing it unlessthey are willing to assume the risk of litigation. Businesses shouldalso be aware that under the general principle of good faith, newobligations beyond the duty of honest performance could berecognised in the future.
In a unanimous judgment written by Justice Cromwell, the Courtheld that good faith contractual performance is an overarchingorganising principle of the common law of contract that underpinsand informs the various rules in which the common law currentlyrecognises obligations of good faith. The organising principlemeans that parties must perform their contractual duties honestlyand reasonably and not capriciously or arbitrarily, and they musthave appropriate regard to the legitimate contractual interests of thecontracting partner. Although the principle currently manifestsitself through existing doctrines under which the law requiresparties to be honest, candid and forthright or to deliver reasonablecontractual performance, the principle is not limited to thesedoctrines, but can also apply to novel contexts in which it isappropriate to develop the common law incrementally.
As a specific manifestation of this organising principle of good faith,the Court recognised a new common law duty that applies to allcontracts to act honestly in the performance of contractual obligations.This duty of honest performance does not impose a duty of loyalty ordisclosure, but it prohibits parties from lying or otherwise knowinglymisleading each other about matters directly linked to the performanceof the contract. In Bhasin, the corporate defendant was found to havebreached the duty of honest performance and was therefore held liablein damages to the plaintiff.
9 The Future
9.1 Are there any proposals to change the law and if so whatis the timescale for these and what is their likely impact?
Yes, the Integrity Provisions and the new CETA which will subjectfor the first time the sub-federal procuring entities to internationaltrade disciplines in their procurement processes and contractawards.
9.2 Are any measures being taken to increase access topublic procurement markets for small and medium-sizedenterprises and other underrepresented categories ofbidders?
The Office of Small and Medium Enterprises (OSME)http://www.tpsgc-pwgsc.gc.ca/app-acq/pme-sme/index-eng.html of5 within Public Works and Government Services Canada (PWGSC)improves SMEs access to government contract opportunities byreducing procurement barriers, simplifying the contracting process,providing advice to SMEs wishing to do business with thegovernment, collaborating to improve procurement policies andbest practices and working with SMEs to ensure their concerns arebrought forward and heard.
OSME assists SMEs in better understanding how the governmentbuys goods and services by raising awareness of opportunities andby providing the following information services:
Buyandsell.gc.ca, which provides access to federalprocurement information and open data including bidopportunities (tenders), standing offers and supplyarrangements, and contract history.
Free seminars and webinars and one-on-one sessions toassist suppliers in understanding federal procurement.
A 1-800 InfoLine for suppliers who have questions about theprocurement process and related tools.
Since 2006-2007, PWGSC has awarded, on average, more than43% of the total value of contracts transacted with businesseslocated in Canada to SMEs.
Not Legal Advice
Information made available in this chapter in any form is forinformation purposes only. It is not, and should not be taken aslegal advice. You should not rely on, or take or fail to take anyaction, based upon this information.
Cana
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Brenda C. Swick
McCarthy Tétrault, LLPBox 48, Suite 5300Toronto Dominion Bank TowerToronto ON M5K1E6Canada
Brenda C. Swick is Co-Chair of the firm’s national Procurementgroup and a partner in the Litigation department. Her practicefocuses on government contracting law, international trade, anti-corruption, defence trade controls and government relations. Ms.Swick is one of Canada’s leading experts on the law ofcompetitive contracting and on trade agreements relating togovernment procurement. She has represented clients innumerous government contracting disputes, including before theCanadian International Trade Tribunal, the Federal Court ofCanada and provincial tribunals. She advises public and privatesector clients on complex public procurement law mattersinvolving design of procurement processes, drafting procurementdocuments, advising on terms and conditions of procurements,and assisting with legal challenges to procurements. With over20 years of experience dealing with government contractingissues, Ms. Swick has advised clients across the globe on the fullspectrum of infrastructure and public procurement issues.
McCarthy Tétrault is a Canadian law firm that delivers integrated business law, litigation services, tax law, real property law, andlabour and employment law nationally and globally through offices in Vancouver, Calgary, Toronto, Montréal and Québec City, andLondon, UK.
McCarthy Tétrault advises on procurement matters and resolving related disputes. Our team has worked on some of the largestand most complex procurement projects worldwide and has successfully represented clients in many precedent-setting cases.Both public procuring entities and private-sector clients retain McCarthy Tétrault to represent them in all aspects of procurement.
McCarthy Tétrault assists government contracting entities with preparing requests for proposals and tenders and otherprocurement documents, developing selection criteria, advising on selection of successful respondents, and preparing andnegotiating contract documentation. We have represented clients before all levels of Canadian trial and appellate courts andadministrative tribunals, including the Canadian International Trade Tribunal (CITT).
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