Vol. 151, No. 14 — July 12, 2017

Registration

SOR/2017-144 June 20, 2017

CANADIAN INTERNATIONAL TRADE TRIBUNAL ACT

Regulations Amending the Canadian International Trade Tribunal Procurement Inquiry Regulations

P.C. 2017-836 June 20, 2017

His Excellency the Governor General in Council, on the recommendation of the Minister of Finance, pursuant to section 40 (see footnote a) of the Canadian International Trade Tribunal Act (see footnote b), makes the annexed Regulations Amending the Canadian International Trade Tribunal Procurement Inquiry Regulations.

Regulations Amending the Canadian International Trade Tribunal Procurement Inquiry Regulations

Amendments

1 (1) The definition Agreement on Internal Trade in section 2 of the Canadian International Trade Tribunal Procurement Inquiry Regulations (see footnote 1) is repealed.

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

CFTA means the Canadian Free Trade Agreement, signed in 2017, as amended from time to time. (ALÉC)

2 (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 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.

(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 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:

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

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

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

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

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

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

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

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

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

7 (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 or the CFTA 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 or the CFTA applies.

Transitional Provision

8 The Canadian International Trade Tribunal Procurement Inquiry Regulations, as they read before the day on which these Regulations come into force, shall apply in respect of any procurements for which the requirements were decided by the government institution before these Regulations come into force.

Coming into Force

9 (1) Subject to subsections (2) and (3), these Regulations come into force at 1:00 a.m. Daylight Time on July 1, 2017, but if these Regulations are registered after that day, these Regulations come into force on the day on which they are registered.

(2) If section 95 of the Canada–European Union Comprehensive Economic and Trade Agreement Implementation Act, chapter 6 of the Statutes of Canada, 2017, is in force before 1:00 a.m. Daylight Time on the day on which section 1 of these Regulations comes into force, then subsections 2(2) and (4), 3(2), 4(2), 5(2), 6(2) and 7(2) of these Regulations are deemed never to have come into force and are repealed.

(3) If section 95 of the Canada–European Union Comprehensive Economic and Trade Agreement Implementation Act is not in force before 1:00 a.m. Daylight Time on the day on which section 1 of these Regulations comes into force, then subsections 2(1) and (3), 3(1), 4(1), 5(1), 6(1) and 7(1) of these Regulations are deemed never to have come into force and are repealed.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

Amendments to the Canadian International Trade Tribunal Procurement Inquiry Regulations are required to fully implement the federal government’s procurement commitments under the Canadian Free Trade Agreement (CFTA).

Background

On April 7, 2017, the federal, provincial and territorial governments announced the conclusion of negotiations for the CFTA, which entered into force on July 1, 2017, and replaces the Agreement on Internal Trade (AIT).

The CFTA includes a procurement chapter that, among other things, requires each Party to provide timely, effective, transparent and non-discriminatory administrative or judicial review procedures through which potential Canadian suppliers may challenge a breach of the agreement. This obligation is similar to procurement commitments made by the Government of Canada in international free trade agreements such as the Canada–European Union Comprehensive Economic and Trade Agreement, the Canada-Honduras Free Trade Agreement and the Canada-Panama Free Trade Agreement.

The Canadian International Trade Tribunal (CITT) is responsible for inquiring into complaints made by potential suppliers of goods or services relating to federal government procurement that is covered by various trade agreements. The CITT already fulfills this role for federal government procurements covered under the AIT.

The CITT’s procurement inquiries are governed by the Canadian International Trade Tribunal Procurement Inquiry Regulations, which allow the CITT to consider and make findings with respect to complaints concerning federal government procurement that is subject to the terms of the relevant free trade agreements.

Objectives

The objective of these amendments is to fully implement the federal government’s obligations under the CFTA in relation to procurement.

Description

The Canadian International Trade Tribunal Procurement Inquiry Regulations are amended to reflect the inclusion of the CFTA so that the CITT may conduct inquiries related to federal procurement bid complaints by potential Canadian suppliers. The corresponding references to the AIT are removed and a grandfathering clause is added to allow the obligations of the AIT to continue applying in respect of federal government procurements for which the federal government institution decided on its requirements before July 1, 2017.

“One-for-One” Rule

The “One-for-One” Rule does not apply to these amendments, as there is no change in administrative costs to business.

Small business lens

The small business lens does not apply to these amendments, as there are no costs imposed on small business.

Consultation

The CFTA is supported by a broad cross-section of Canadian business stakeholders in most sectors and regions. Innovation, Science and Economic Development Canada (ISED) led and coordinated the federal government’s negotiations for the CFTA, beginning in December 2014. Stakeholders, including business associations and consumer groups, were consulted regularly throughout the negotiations. No stakeholders raised concerns with the CITT’s procurement review procedures during these consultations.

Rationale

These amendments are required to fully implement the federal government’s obligations under the CFTA.

The government procurement provisions in the CFTA will create a level playing field for businesses operating across Canada and allow them to benefit from more opportunities to bid on a wider range of government contracts beyond the borders of their home province or territory. Open procurement will also support value-for-money in government purchasing. These amendments support the commitments made by the federal government in the CFTA by allowing federal procurements to be subject to the CITT’s independent bid challenge mechanism.

These amendments do not impose additional costs on Canadian suppliers, as there are no changes to the requirements for making a complaint to the CITT when compared to procurement complaints made in respect of procurement under the AIT.

Implementation, enforcement and service standards

The CITT will administer and interpret these regulations in the course of its responsibilities in respect of conducting procurement inquiries.

Contact

Alan Ho
International Trade Policy Division
Department of Finance
Ottawa, Ontario
K1A 0G5
Telephone: 613-369-4022