In 2017, the introduction of the Canada EU Trade Agreement (CETA) suddenly shined a new spotlight on municipal procurement, thrusting it onto the international stage. For the first time ever, municipalities were forced to open up procurement opportunities to international suppliers. Almost concurrently, Canada updated its domestic trade agreement, the Canadian Free Trade Agreement (CFTA), modeled on the CETA. Together, these agreements represent a major paradigm shift for municipal procurement, with some notable impacts as discussed below.
Trade Agreements Regulate Municipal Procurement. Before 2017, Canadian municipalities were generally expected to adopt procurement rules ensuring openness, fairness and value for money. The impact of the new 2017 trade agreements was that, for the first time, municipalities were now required to comply with detailed procurement processes and procedures. The trade agreements cover a full range of new requirements including:
• posting tender notices online
• specific information to include in tender notices
• permitted types of procurements (e.g. open, direct)
• how to handle receipt of bids
• the do’s and don’ts of drafting solicitation documents
• the award of contracts
• posting notices of contract awards and
• bidder barring rules.
Increased Liability Exposure – New supplier rights and remedies. Before 2017, it was almost impossible for disgruntled suppliers to complain about trade agreement violations under Canada’s national trade agreement. The 2017 agreements have introduced new rights and remedies for suppliers, including the rights to:
• a debriefing when they are unsuccessful in a procurement process;
• file a complaint that now must be addressed by the procuring entity – can’t be ignored;
• to submit legal challenges to a federal/provincial/territorial bid dispute panel.
Single Portal Access to all Canadian procurement opportunities. Currently municipalities use all sorts of online portals to publish their opportunities, making access to contract opportunities challenging for suppliers. In the 2017 agreements, the federal government committed to establishing a single online portal by 2022 so that suppliers have one point of entry for all Canadian contract opportunities. Once implemented, this portal will undoubtedly expose municipal procurements to an exponentially greater number of suppliers, further shining the light on municipal procurement practices.
The Municipal Procurement Experience Under CFTA/CETA After 3 Years
It’s hard to conclude the trade agreements had a major impact on municipalities. While anecdotal evidence suggests municipalities have shored up procurement bylaws, policies and procedures, we’ve seen few challenges to municipal procurements under the new trade agreements. This could suggest the supplier community is not paying close attention to the changed landscape and that perhaps it hasn’t caught on to new supplier rights and remedies. And what about Canada’s promised single access portal by 2022? It appears the federal government is working on it. A 2018 Ernst & Young LLP/SAP press release announcing a contract award to develop the portal stated: Provincial and municipal organizations will… be offered an option to use this new platform to streamline their procurement processes … while engaging with more than 183,000 government suppliers. (That’s a lot of suppliers!)
What does the future hold?
The future is now for municipal procurement. We suggest it won’t be long before the seismic shift of the trade agreements is felt. It’s just a matter of time before suppliers gain a better understanding of their rights and remedies under the trade agreements and hold municipalities accountable for compliance. Once the federal portal is implemented, we expect a slew of new suppliers (national and international) will foray onto the municipal procurement stage. There’s still time. If the seismic shift is coming as we suggest, there’s no better time than now for municipalities to get their procurement house in order.
Lise Patry co-founded LXM LAW LLP in 2020 to help municipalities with their procurement needs. LXM LAW’s team includes both experienced municipal procurement consultants and lawyers. Lise can be reached at [email protected] or by phone at 613-601-6333.
Readers are cautioned not to rely upon this article as legal advice nor as an exhaustive discussion of the topic or case. For any particular legal problem, seek advice directly from your lawyer or in-house counsel. All dates, contact information and website addresses were current at the time of original publication.