We recently heard about a debate among certain public sector organizations on whether the trade agreements apply to the procurement of insurance. To help clarify things, we decided to answer this question.

In this blog post we only examine whether the Canadian Free Trade Agreement (CFTA) and the Canada-EU Trade Agreement (CETA) apply as they are trade agreements that apply to most Canadian municipalities. To be 100% sure about whether insurance has to be tendered, municipalities should also check their local rules.

When must a procurement be publicly tendered under CFTA and CETA?

The CFTA and CETA trade agreements apply to Canadian municipalities when:

• • The municipality is included in the trade agreement
  • The good or service is included in the trade agreement
  • The dollar value of the final contract is:
    o 105,700 or greater for goods or services and 264,200 or greater for construction (CFTA)
    o 366,200 for goods/services and 9,100,000 for construction (CETA)

Must the purchase of insurance be publicly tendered under CFTA and CETA?

No. Insurance is not subject to either CFTA or CETA as of the date of this blog post.

CFTA, at Chapter 13, defines the term “financial service” to include a variety of financial services, including insurance. The CFTA, Article 504(11)(h), stipulates that the procuring of a “financial service” is exempted where it is in respect of managing government financial assets and liabilities, including any ancillary and information services. Since insurance is a tool used to manage public assets and liabilities, it is therefore exempted from the application of the CFTA.

CETA applies only to the specific services listed in Annex 19-5. Services are denoted by their Central Product Classification (CPC) code. The CPC codes for insurance and insurance services are not listed in Annex 19-5. As such, insurance is not captured by the CETA.

Regional Note for Western Canada Municipalities — Although CFTA and CETA exempt insurance and related services, entities in Manitoba, Saskatchewan, Alberta and BC may be under an obligation to tender their insurance requirements under the regional New West Trade Partnership Agreement (NWTPA), which does not explicitly exempt financial services. To be sure, we recommend municipalities consult with their legal counsel or a procurement professional.

Are the ancillary services, such as brokerage and insurance advisory services also exempt?

Yes, services ancillary to insurance are excluded.

Under CFTA, the services provided by insurance brokers, which are by their very nature services ancillary to insurance, are exempted.

As for CETA, the omission of the CPC codes for insurance and related services is sufficient to conclude that brokerage services are excluded from CETA.

Even if insurance exempted from the public tendering requirements, should municipalities tender their insurance requirements?

We think so, particularly if the municipality has never put its insurance requirements out to tender before.

In our experience, all brokers are not created equal. Some are well equipped to provide insurance and risk advisory services while others, not so much.

Municipalities are best served by brokers with experience in the municipal sector who are well-positioned to advise municipalities on available insurance products and who are well positioned to find the best coverage possible for given risks. Tendering your insurance requirements using a RFP that, among other things, evaluates broker capacity and experience, that qualitatively ensures you’re accessing the best brokers and advisors, is a great way to ensure the municipality is getting the best advice and value available for the dollars spent.  Tendering may take a bit more upfront time and effort but the dividends should pay off in the long term.

Lise Patry is a business and public procurement lawyer working out of Ottawa. She co-founded LXM LAW LLP in 2020 to help municipalities with their procurement and contracting legal 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. (Special thanks to Daniel Ebady, articling student, for his assistance with this blog post.)

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.