MILLAR KREKLEWETZ LLP is a boutique Canadian law firm with lawyers who have significant expertise in assisting businesses with respect to government procurement.
The following is a short introduction to our services in this area.
Government Procurement - General
Government procurement is generally the acquisition of goods and services by contract, which may be off-the-shelf, an adaptation of an existing product, or a unique development of a product to meet defined requirements.
The Buyers process includes identification of a need, defining the requirements, selection of a procurement strategy, project approval, bid solicitation, selection of the winning bidder, negotiation and award of the contract, and contract performance and administration. Prior to release of a Request for Proposal (RFP), a project office may issue a price and availability request, a solicitation of interest, draft a statement of requirements/objectives, requests for information, and conduct pre-solicitation conferences or bidders conferences.
At the federal level in Canada , Public Works and Government Services Canada (PWGSC) is the contracting authority for federal government procurement agreements.
The contracting authority usually starts by issuing a Solicitation of Interest (a.k.a Letter of Interest) to industry. Companies are then encouraged to meet with the Program Manager to learn more about the operational requirements and expectations on the project.
Once an RFP is issued however, all further inquiries must be submitted in writing to ensure consistency and quality of information provided to bidders. The contracting authority will provide to all of the companies to which a solicitation has been sent, any information with respect to significant inquiries received and the replies, without revealing the source of the inquiries.
Once a bid is submitted, no corrections may be made after the closing date. This is deemed bid repair and is illegal, since it would not be fair to other bidders if the content could be changed after the closing date. The evaluation team may ask for clarification from the bidder, however it will be careful not to give any bidder an advantage, and no reply can change the amount quoted or affect any substantive element of the bid. Non-compliance with these conditions may itself result in disqualification of the bidders proposal. An RFP will include an outline as to how the bids will be evaluated, and a model contract which the chosen bidder will be expected to agree to. Suppliers must meet requirements, which include assessment of the financial, technical, and managerial skills to ensure that they can fulfill the contract.
The legal framework over procurement by the federal government rests on four pillars: the Request for Proposals, which the courts have held forms a contract when the bidder submits a bid; case-law which requires that the government act in good faith and treat all bidders fairly in the procurement process; the Government Contract Regulations made under the Financial Administration Act; and obligations arising under international and domestic trade agreements.
Provincial Procurement Ontario
Most of the mandatory requirements for Ontario government procurement flows from the internal trade agreements, being the Agreement for the Opening of Public Procurement for Ontario and Quebec (May 3, 1994) and the Agreement on Internal Trade (AIT), which was signed by the provinces, territories and federal government on July 18, 1995. Both of these contain similar procurement provisions.
The procurement process must be fair, open and widely advertised, as in the federal sphere.
Under the Municipal Act, 2001, municipalities must adopt policies relating to procurement, and the Minister is to make regulations in that respect.
Another piece of legislation in this area is the financing lease provisions enacted by regulation under the Municipal Act, which relate to housing. Effective July 1, 1999, Annex 502.4 of the AIT (the MASH Annex) extended AIT procurement provisions to MASH sector entities, including municipalities, municipal organizations, school boards, and publicly funded academic institutions, health and social service entities, as well as any corporation or entity owned or controlled by one of the preceding. The MASH Annex applies to procurement of goods and services over $100,000 and construction over $250,000, which requires that such procurements be subject to the tendering process.
Millar Kreklewetz LLP advises clients on all aspects relating to government procurement, and any persons wishing to understand government procurement are encouraged to contact us for more infomation on those issues inherent in their files.