Canada Gazette, Part I, Volume 151, Number 28: Regulations Amending the Canadian International Trade Tribunal Procurement Inquiry Regulations

July 15, 2017

Statutory authority

Canadian International Trade Tribunal Act

Sponsoring department

Department of Finance

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

In order to implement the Canada-European Union Comprehensive Economic and Trade Agreement (CETA), the Canada-European Union Comprehensive Economic and Trade Agreement Implementation Act was introduced in the House of Commons on October 31, 2016, and received royal assent on May 16, 2017. In addition to the implementing act, a number of associated regulations are necessary to fully implement government procurement provisions under CETA into the Canadian legal framework.

Background

The Prime Minister, along with the President of the European Council and the President of the European Commission, signed the Comprehensive Economic and Trade Agreement during the European Union-Canada Leaders' Summit on October 30, 2016. On July 8, 2017, the Prime Minister and the President of the European Commission announced that provisional application of the agreement will come into effect on September 21, 2017.

Regulations are necessary to fully implement Canada's rights and obligations related to government procurement commitments under CETA. The proposed Regulations Amending the Canadian International Trade Tribunal Procurement Inquiry Regulations would provide the authority for the Canadian International Trade Tribunal (the Tribunal) to consider and make findings with respect to government procurements that are subject to the terms of CETA.

Objectives

The objective of the proposed amendments is to fully implement Canada's obligations under CETA in relation to procurement.

Description

The Canadian International Trade Tribunal Procurement Inquiry Regulations would be amended to include relevant references to CETA, to ensure that the Tribunal considers all the necessary factors when conducting a procurement inquiry that is subject to the terms of CETA.

“One-for-One” Rule

The “One-for-One” Rule does not apply to this proposal, as there would be no change in administrative costs to business.

Small business lens

The small business lens does not apply to this proposal, as there would be no costs imposed on small business.

Consultation

In December 2008, the Government of Canada launched public consultations with provinces and territories, businesses, industry associations and the general public to gauge Canadians' interests and sensitivities in launching free trade negotiations with the EU. Stakeholders were regularly consulted throughout the negotiations. A free trade agreement with the EU is supported by a broad cross-section of Canadian business stakeholders.

Rationale

The proposed Regulations are required to fully implement obligations set out in CETA. Canada has implemented similar regulations for purposes of its other bilateral and regional free trade agreements (FTAs), including the North American Free Trade Agreement, the Canada-Chile FTA, the Canada-Costa Rica FTA, the Canada-Peru FTA, the Canada-Colombia FTA, and the Canada-Panama FTA.

Implementation, enforcement and service standards

The Tribunal would administer and interpret these Regulations in the course of its responsibilities in respect of conducting procurement inquiries.

Contact

Michèle Govier
International Trade Policy Division
Department of Finance
Ottawa, Ontario
K1A 0G5
Telephone: 613-369-4028

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council, pursuant to section 40 (see footnote a) of the Canadian International Trade Tribunal Act (see footnote b), proposes to make the annexed Regulations Amending the Canadian International Trade Tribunal Procurement Inquiry Regulations.

Interested persons may make representations concerning the proposed Regulations within 15 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Michèle Govier, International Trade Policy Division, Department of Finance, Ottawa, Ontario K1A 0G5 (email: michele.govier@canada.ca).

Ottawa, July 13, 2017

Jurica Čapkun
Assistant Clerk of the Privy Council

Regulations Amending the Canadian International Trade Tribunal Procurement Inquiry Regulations

Amendments

1 The long title of the Canadian International Trade Tribunal Procurement Inquiry Regulations (see footnote 1) is replaced by the following:

Canadian International Trade Tribunal Procurement Inquiry Regulations

2 Section 1 of the Regulations and the heading before it are repealed.

3 Section 2 of the Regulations is amended by adding the following in alphabetical order:

CETA means the Comprehensive Economic and Trade Agreement between Canada and the European Union and its Member States, done at Brussels on October 30, 2016. (AÉCG)

4 (1) Subsection 3(1) of the Regulations is replaced by the following:

3 (1) For the purposes of the definition designated contract in section 30.1 of the Act, any contract or class of contract concerning a procurement of goods or services or any combination of goods or services, as described in Article 1001 of NAFTA, in Article II of the Agreement on Government Procurement, in Article Kbis-01 of Chapter Kbis of the CCFTA, in Article 1401 of Chapter Fourteen of the CPFTA, in Article 1401 of Chapter Fourteen of the CCOFTA, in Article 16.02 of Chapter Sixteen of the CPAFTA, in Article 17.2 of Chapter Seventeen of the CHFTA, in Article 14.3 of Chapter Fourteen of the CKFTA, in Article 19.2 of Chapter Nineteen of CETA, in Article 504 of Chapter Five of the CFTA or in Article 10.2 of Chapter Ten of CUFTA, that has been or is proposed to be awarded by a government institution, is a designated contract.

(2) Subsection 3(1) of the Regulations is replaced by the following:

3 (1) For the purposes of the definition designated contract in section 30.1 of the Act, any contract or class of contract concerning a procurement of goods or services or any combination of goods or services, as described in Article 1001 of NAFTA, in Article II of the Agreement on Government Procurement, in Article Kbis-01 of Chapter Kbis of the CCFTA, in Article 1401 of Chapter Fourteen of the CPFTA, in Article 1401 of Chapter Fourteen of the CCOFTA, in Article 16.02 of Chapter Sixteen of the CPAFTA, in Article 17.2 of Chapter Seventeen of the CHFTA, in Article 14.3 of Chapter Fourteen of the CKFTA, in Article 19.2 of Chapter Nineteen of CETA or in Article 504 of Chapter Five of the CFTA, that has been or is proposed to be awarded by a government institution, is a designated contract.

(3) Paragraphs 3(2)(a) and (b) of the Regulations are replaced by the following:

• (a) the federal government entities set out in the Schedule of Canada in Annex 1001.1a-1 of NAFTA, under the heading “CANADA” in Annex 1 of the Agreement on Government Procurement, in the Schedule of Canada in Annex Kbis-01.1-1 of Chapter Kbis of the CCFTA, in the Schedule of Canada in Annex 1401.1-1 of Chapter Fourteen of the CPFTA, in the Schedule of Canada in Annex 1401-1 of Chapter Fourteen of the CCOFTA, in the Schedule of Canada in Annex I of Chapter Sixteen of the CPAFTA, in the Schedule of Canada in Annex 17.1 of Chapter Seventeen of the CHFTA, in the Schedule of Canada in Annex 14-A of Chapter Fourteen of the CKFTA, in the Market access schedule of Canada in Annex 19-1 of Annex 19-A of Chapter Nineteen of CETA or in Annex 10-1 of the Market access schedule of Canada in Chapter 10 of CUFTA or the federal government entities that are procuring entities as referred to in Article 504.2 of the CFTA;
• (b) the federal government enterprises set out in the Schedule of Canada in Annex 1001.1a-2 of NAFTA, under the heading “CANADA” in Annex 3 of the Agreement on Government Procurement, in the Schedule of Canada in Annex Kbis-01.1-2 of Chapter Kbis of the CCFTA, in the Schedule of Canada in Annex 1401.1-2 of Chapter Fourteen of the CPFTA, in the Schedule of Canada in Annex 1401-2 of Chapter Fourteen of the CCOFTA, in the Schedule of Canada in Annex II of Chapter Sixteen of the CPAFTA, in the Schedule of Canada in Annex 17.2 of Chapter Seventeen of the CHFTA, in the Schedule of Canada in Annex 14-A of Chapter Fourteen of the CKFTA or in Annex 10-2 of the Market access schedule of Canada in Chapter 10 of CUFTA or the federal government enterprises referred to in the Market access schedule of Canada in Annex 19-3 of Annex 19-A of Chapter Nineteen of CETA or the federal government enterprises that are procuring entities as referred to in Article 504.2 of the CFTA; and

(4) Paragraphs 3(2)(a) and (b) of the Regulations are replaced by the following:

• (a) the federal government entities set out in the Schedule of Canada in Annex 1001.1a-1 of NAFTA, under the heading “CANADA” in Annex 1 of the Agreement on Government Procurement, in the Schedule of Canada in Annex Kbis-01.1-1 of Chapter Kbis of the CCFTA, in the Schedule of Canada in Annex 1401.1-1 of Chapter Fourteen of the CPFTA, in the Schedule of Canada in Annex 1401-1 of Chapter Fourteen of the CCOFTA, in the Schedule of Canada in Annex I of Chapter Sixteen of the CPAFTA, in the Schedule of Canada in Annex 17.1 of Chapter Seventeen of the CHFTA, in the Schedule of Canada in Annex 14-A of Chapter Fourteen of the CKFTA or in the Market access schedule of Canada in Annex 19-1 of Annex 19-A of Chapter Nineteen of CETA or the federal government entities that are procuring entities as referred to in Article 504.2 of the CFTA;
• (b) the federal government enterprises set out in the Schedule of Canada in Annex 1001.1a-2 of NAFTA, under the heading “CANADA” in Annex 3 of the Agreement on Government Procurement, in the Schedule of Canada in Annex Kbis-01.1-2 of Chapter Kbis of the CCFTA, in the Schedule of Canada in Annex 1401.1-2 of Chapter Fourteen of the CPFTA, in the Schedule of Canada in Annex 1401-2 of Chapter Fourteen of the CCOFTA, in the Schedule of Canada in Anne II of Chapter Sixteen of the CPAFTA, in the Schedule of Canada in Annex 17.2 of Chapter Seventeen of the CHFTA or in the Schedule of Canada in Annex 14-A of Chapter Fourteen of the CKFTA or the federal government enterprises referred to in the Market access schedule of Canada in Annex 19-3 of Annex 19-A of Chapter Nineteen of CETA or the federal government enterprises that are procuring entities as referred to in Article 504.2 of the CFTA; and

5 (1) Paragraph 5(a) of the Regulations is replaced by the following:

• (a) if a notice of proposed procurement was published in accordance with one or more of NAFTA, the Agreement on Government Procurement, the CCFTA, the CPFTA, the CCOFTA, the CPAFTA, the CHFTA, the CKFTA, CETA, the CFTA and CUFTA, at the time that the notice was published; or

(2) Paragraph 5(a) of the Regulations is replaced by the following:

• (a) if a notice of proposed procurement was published in accordance with one or more of NAFTA, the Agreement on Government Procurement, the CCFTA, the CPFTA, the CCOFTA, the CPAFTA, the CHFTA, the CKFTA, CETA and the CFTA, at the time that the notice was published; or

6 (1) Paragraph 6(3)(b) of the Regulations is replaced by the following:

• (b) the complaint concerns any aspect of the procurement process, of a systemic nature, relating to a designated contract, and compliance with one or more of Chapter Ten of NAFTA, the Agreement on Government Procurement, Chapter Kbis of the CCFTA, Chapter Fourteen of the CPFTA, Chapter Fourteen of the CCOFTA, Chapter Sixteen of the CPAFTA, Chapter Seventeen of the CHFTA, Chapter Fourteen of the CKFTA, Chapter Nineteen of CETA, Chapter Five of the CFTA and Chapter Ten of CUFTA.

(2) Paragraph 6(3)(b) of the Regulations is replaced by the following:

• (b) the complaint concerns any aspect of the procurement process, of a systemic nature, relating to a designated contract, and compliance with one or more of Chapter Ten of NAFTA, the Agreement on Government Procurement, Chapter Kbis of the CCFTA, Chapter Fourteen of the CPFTA, Chapter Fourteen of the CCOFTA, Chapter Sixteen of the CPAFTA, Chapter Seventeen of the CHFTA, Chapter Fourteen of the CKFTA, Chapter Nineteen of CETA and Chapter Five of the CFTA.

7 (1) Paragraph 7(1)(c) of the Regulations is replaced by the following:

• (c) the information provided by the complainant, and any other information examined by the Tribunal in respect of the complaint, discloses a reasonable indication that the procurement has not been conducted in accordance with whichever of Chapter Ten of NAFTA, the Agreement on Government Procurement, Chapter Kbis of the CCFTA, Chapter Fourteen of the CPFTA, Chapter Fourteen of the CCOFTA, Chapter Sixteen of the CPAFTA, Chapter Seventeen of the CHFTA, Chapter Fourteen of the CKFTA, Chapter Nineteen of CETA, Chapter Five of the CFTA or Chapter Ten of CUFTA applies.

(2) Paragraph 7(1)(c) of the Regulations is replaced by the following:

• (c) the information provided by the complainant, and any other information examined by the Tribunal in respect of the complaint, discloses a reasonable indication that the procurement has not been conducted in accordance with whichever of Chapter Ten of NAFTA, the Agreement on Government Procurement, Chapter Kbis of the CCFTA, Chapter Fourteen of the CPFTA, Chapter Fourteen of the CCOFTA, Chapter Sixteen of the CPAFTA, Chapter Seventeen of the CHFTA, Chapter Fourteen of the CKFTA, Chapter Nineteen of CETA or Chapter Five of the CFTA applies.

8 (1) Paragraph 10(a) of the Regulations is replaced by the following:

• (a) after taking into consideration the Act, these Regulations and, as applicable, NAFTA, the Agreement on Government Procurement, the CCFTA, the CPFTA, the CCOFTA, the CPAFTA, the CHFTA, the CKFTA, CETA, the CFTA or CUFTA, the Tribunal determines that the complaint has no valid basis;

(2) Paragraph 10(a) of the Regulations is replaced by the following:

• (a) after taking into consideration the Act, these Regulations and, as applicable, NAFTA, the Agreement on Government Procurement, the CCFTA, the CPFTA, the CCOFTA, the CPAFTA, the CHFTA, the CKFTA, CETA or the CFTA, the Tribunal determines that the complaint has no valid basis;

9 (1) Section 11 of the Regulations is replaced by the following:

11 If the Tribunal conducts an inquiry into a complaint, it shall determine whether the procurement was conducted in accordance with the requirements set out in whichever of NAFTA, the Agreement on Government Procurement, the CCFTA, the CPFTA, the CCOFTA, the CPAFTA, the CHFTA, the CKFTA, CETA, the CFTA or CUFTA applies.

(2) Section 11 of the Regulations is replaced by the following:

11 If the Tribunal conducts an inquiry into a complaint, it shall determine whether the procurement was conducted in accordance with the requirements set out in whichever of NAFTA, the Agreement on Government Procurement, the CCFTA, the CPFTA, the CCOFTA, the CPAFTA, the CHFTA, the CKFTA, CETA or the CFTA applies.

Coming into Force

10 (1) Subject to subsections (2) and (3), these Regulations come into force on the day on which section 95 of the Canada–European Union Comprehensive Economic and Trade Agreement Implementation Act, chapter 6 of the Statutes of Canada, 2017, comes into force but, if they are registered after that day, they come into force on the day on which they are registered.

(2) If section 32 of the Canada–Ukraine Free Trade Agreement Implementation Act, chapter 8 of the Statutes of Canada, 2017, is in force on the day on which section 1 of these Regulations come into force, then subsections 4(2) and (4), 5(2), 6(2), 7(2), 8(2) and 9(2) are deemed never to have come into force and are repealed.

(3) If section 32 of the Canada–Ukraine Free Trade Agreement Implementation Act is not in force on the day on which section 1 of these Regulations come into force, then subsections 4(1) and (3), 5(1), 6(1), 7(1), 8(1) and 9(1) are deemed never to have come into force and are repealed.

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