Public sector entities in Canada need to be aware of the various trade agreements that might impact their procurement process. There are a range of relevant agreements, which have varying impacts, dependent on the nature of the procuring authority.
General Principles
Although the details of each agreement vary, they share some general principles. These can be summarized as:
Reducing barriers to trade
The main aim of each of the trade agreements is to reduce barriers to trade between the contracting entities. Procurement is only one area covered - others include ensuring that standards and regulations do not restrict trade and enhancing labour mobility.
Non-discrimination
This is a key element to the procurement provisions of the trade agreements - governments may not discriminate against vendors from the other contracting parties. There may be some specific exceptions but generally local vendors should not have an advantage by way of any preferential treatment.
Transparency and process
In order to ensure that all parties are able to take advantage of the trade agreements, they contain provisions dealing with transparency and process. In the procurement area this may involve requiring the use of web based directories, so that information about upcoming procurements is easily accessible to all.
Dispute resolution
The trade agreements contain provisions to deal with disputes. These vary in their effectiveness. As discussed in previous posts, the federal government has provided that claims against it that arise under the Agreement on Internal Trade or NAFTA can be brought in the CITT. However, disputes between the provinces tend to be dealt with on a government to government basis, with little direct relief for dissatisfied vendors.
Legitimate exceptions
Each of the agreements contains exceptions. These generally include exceptions for emergencies, procurement of health or social services, national security and where only one supplier can meet the requirements. The exceptions should be read narrowly - for example, a government cannot claim that there is insufficient time to run a procurement process, if the reason was a failure by the government to start the procurement process early enough.
One key exception for procurements is that procurements under a certain value (usually a different value is set for goods, services and construction) are exempt from the requirements.
Subsequent posts will look in more detail at the various trade agreements that apply, starting in the west, the New West Partnership Trade Agreement and moving to the international arena, including the latest agreement between Canada and the European Union, CETA.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
