Vol. 144, No. 10 — May 12, 2010

Registration

SOR/2010-87 April 22, 2010

CANADIAN INTERNATIONAL TRADE TRIBUNAL ACT

Regulations Amending the Canadian International Trade Tribunal Procurement Inquiry Regulations

P.C. 2010-481 April 22, 2010

Her Excellency the Governor General in Council, on the recommendation of the Minister of Finance, pursuant to section 40 (see footnote a) of the Canadian International Trade Tribunal Act (see footnote b), hereby makes the annexed Regulations Amending the Canadian International Trade Tribunal Procurement Inquiry Regulations.

REGULATIONS AMENDING THE CANADIAN INTERNATIONAL TRADE TRIBUNAL PROCUREMENT INQUIRY REGULATIONS

AMENDMENT

1. Subsection 3(2) of the Canadian International Trade Tribunal Procurement Inquiry Regulations (see footnote 1) is amended by adding “and” at the end of paragraph (b) and by replacing paragraphs (c) and (d) with the following:

(c) if a procurement that results in the award of a designated contract by a government entity or enterprise referred to in paragraph (a) or (b) is conducted by the Department of Public Works and Government Services or its successor, that Department or its successor.

COMING INTO FORCE

2. These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT
ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issue and objectives

The Regulations Amending the Canadian International Trade Tribunal Procurement Inquiry Regulations are required to implement the recently concluded Agreement between the Government of Canada and the Government of the United States of America on Government Procurement (subsequently referred to as “the Canada-U.S. Agreement”). The Canada-U.S. Agreement, which was signed by Canada on February 11, 2010, and entered into force on February 16, 2010, addresses many of the concerns raised by Canadian industry regarding expanded “Buy American” provisions in the American Recovery and Reinvestment Act of 2009 by providing Canadian companies with market access to a number of infrastructure projects funded by this act.

Description and rationale

Canadian provinces and territories have jurisdictional authority to consider and make findings with respect to complaints concerning provincial and territorial government procurement practices and decisions, including determinations in respect of consistency with international commitments.

Under the Canada-U.S. Agreement, provinces and territories agreed to take on international commitments under the World Trade Organization Agreement on Government Procurement (GPA), and to provide for appropriate bid review procedures to be available to suppliers in respect of procurements subject to these commitments, in line with provincial and territorial jurisdiction.

However, the current drafting of the Canadian International Trade Tribunal Procurement Inquiry Regulations (subsequently referred to as “the Regulations”) provides authority to the Canadian International Trade Tribunal (CITT) to consider and make findings with respect to provincial procurements subject to the GPA and the North American Free Trade Agreement (NAFTA), which is inconsistent with provincial and territorial authority.

Specifically, paragraph 3(2)(c) of the Regulations provides the CITT with authority to consider and make findings with respect to complaints regarding government procurements by provincial government entities listed in Annex 1001.1a-3 of the NAFTA or under the heading “CANADA” in Annex 2 of the GPA. This paragraph was originally included as a placeholder in the list of designated “government institutions” in subsection 3(2), in light of a commitment by Canada, in the context of both the NAFTA and the GPA negotiations to explore the possibility of making sub-federal international procurement commitments at a future point in time. In the absence of such commitments prior to the Canada-U.S. Agreement, the category of provincial government entities in paragraph 3(2)(c) was null. In light of the new commitments taken by provinces and territories under the Canada-U.S. Agreement, paragraph 3(2)(c) of the Regulations has been repealed in order to confirm the exclusive provincial and territorial jurisdiction to consider and make findings with respect to complaints concerning provincial and territorial government procurements subject to the GPA and the NAFTA. The CITT will remain responsible for bid review in respect of complaints regarding commitments at the federal level under both the GPA and the NAFTA.

Consultation

These amendments were drafted in consultation with the Canadian International Trade Tribunal, Foreign Affairs and International Trade Canada, and the Treasury Board of Canada Secretariat. Canadian provinces and territories are aware of, and support, the amendment.

The Canada-U.S. Agreement itself is supported by a broad range of Canadian stakeholders, including Canadian provinces, territories and major municipalities as well as a large proportion of Canadian industry.

Implementation, enforcement and service standards

Canadian provinces and territories are responsible for ensuring the establishment of appropriate review mechanisms at the sub-federal level and have indicated that they are committed to doing so.

Contact

Scott Winter
Senior Economist
International Trade Policy Division
Department of Finance Canada
Ottawa, Ontario
K1A 0G5
Telephone: 613-992-4418
Email: Scott.Winter@fin.gc.ca

Footnote a
S.C. 2002, c. 19, s. 6

Footnote b
R.S., c. 47 (4th Supp.)

Footnote 1
SOR/93-602; SOR/95-300

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