Regulations Amending the Canadian International Trade Tribunal Procurement Inquiry Regulations: SOR/2018-224

Canada Gazette, Part II, Volume 152, Number 23

Registration

SOR/2018-224 October 30, 2018

CANADIAN INTERNATIONAL TRADE TRIBUNAL ACT

P.C. 2018-1326 October 29, 2018

Her Excellency the Governor General in Council, on the recommendation of the Minister of Finance, pursuant to section 40footnote a of the Canadian International Trade Tribunal Act 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 Section 2 of the Canadian International Trade Tribunal Procurement Inquiry Regulations footnote 1 is amended by adding the following in alphabetical order:

TPP means the Trans-Pacific Partnership Agreement, done at Auckland, New Zealand on February 4, 2016, as incorporated by reference into the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, done at Santiago, Chile on March 8, 2018; (PTP)

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, in Article 504 of Chapter Five of the CFTA, in Article 10.2 of Chapter Ten of CUFTA or in Article 15.2 of Chapter Fifteen of the TPP, that has been or is proposed to be awarded by a government institution, is a designated contract.

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

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

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

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

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

7 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, CUFTA or the TPP applies.

Coming into Force

8 These Regulations come into force on the day on which section 7 of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership Implementation Act, chapter 23 of the Statutes of Canada 2018, comes into force, but if they are registered after that day, they come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

The Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP or the Agreement) was signed on March 8, 2018. The Comprehensive and Progressive Agreement for Trans-Pacific Partnership Implementation Act was introduced in the House of Commons on June 14, 2018, and received royal assent on October 25, 2018. In addition to the implementing legislation, a number of regulatory amendments are also necessary to fully implement the CPTPP in Canada.

Background

On March 8, 2018, Canada and 10 other Asia-Pacific countries (Australia, Brunei Darussalam, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam) signed the CPTPP. For Canada, implementing legislation and associated regulations and orders are necessary to enact the Agreement’s commitments in the Canadian domestic legal framework.

Under the CPTPP, Canada has agreed to provide suppliers from CPTPP countries with secure and predictable access to procurement opportunities at the federal level in Canada, including timely, transparent and non-discriminatory administrative or judicial review procedures through which a supplier may challenge a breach of the 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. 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 Canada’s rights and obligations under the CPTPP in relation to procurement.

Description

The Canadian International Trade Tribunal Procurement Inquiry Regulations are amended to incorporate references to the CPTPP so that the CITT may conduct procurement inquiries in respect of federal procurement bid complaints by potential CPTPP suppliers.

“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 business.

Consultation

These regulatory amendments are consequential in nature, as they implement the negotiated outcome of the CPTPP. Therefore, no consultations specific to these amendments have been conducted. That said, broad consultations on the Trans-Pacific Partnership (TPP) and the CPTPP have occurred — including on issues concerning procurement — which afforded the opportunity to input into the negotiated outcome. In December 2011, the Government of Canada launched public consultations with provinces and territories, businesses, industry associations and the general public to determine whether Canadians would be supportive of launching free trade negotiations with the TPP countries.

Stakeholders were regularly consulted throughout the negotiations of the TPP. In September 2017, the Government subsequently launched public consultations on the potential of implementing the TPP with members other than the United States, which ultimately became the CPTPP. A bill to implement the CPTPP was introduced in Parliament on June 14, 2018. The parliamentary process is an additional opportunity for stakeholders and the general public to be informed of, and comment on, the CPTPP. The CPTPP is supported by a broad cross-section of Canadian business stakeholders from all regions and from many sectors.

Rationale

In addition to legislative amendments contained in the implementing legislation, these regulatory amendments are necessary to fulfill Canada’s procurement rights and obligations under the CPTPP and to proceed with the implementation of the Agreement.

These amendments are non-discretionary in nature, as they reflect the negotiated outcome of the CPTPP. They are also similar to amendments required to implement Canada’s other free trade agreements (e.g. the Canada-European Union Comprehensive Economic and Trade Agreement and the Canada-Korea Free Trade Agreement).

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

Brittany McNena
International Trade Policy Division
Department of Finance
Ottawa, Ontario
K1A 0G5
Telephone: 613-369-3962