- There are government procurement obligations under NAFTA.
Everyone is familiar to some degree with North American Free Trade Agreement, and knows that NAFTA is an agreement between Canada, the United States and Mexico. The government procurement obligations of NAFTA are contained in Chapter 10 of the agreement. NAFTA applies to procurements of goods, services and construction services by the Canadian federal government entities and enterprises which are listed in the Annexes to Chapter 10 of that agreement. Chapter 10 sets out the basic rules of tendering that government entities are required to follow.
For NAFTA to apply, the procurement must be of goods, services or construction services that are included in Chapter 10, be made by an entity or enterprise that is covered by Chapter 10, and have a value which exceeds the prescribed financial thresholds. If a procurement of goods or services by a federal government entity is covered by NAFTA, then the procurement must be conducted in accordance with the rules set out in that agreement.
- The WTO Agreement on Government Procurement also applies to certain government procurements.
The Agreement on Government Procurement is a multilateral agreement within the context of the World Trade Organization. Like NAFTA, it also applies to certain procurements of goods, services and construction services by Canadian federal government entities. Like NAFTA, certain financial thresholds must be met for the AGP to apply. Where the AGP does apply, then government entities are required to follow the tendering procedures set out therein.
- The Agreement on Internal Trade also applies in certain government procurement contexts.
Unlike the above two international agreements, the Agreement on Internal Trade is a domestic, federal/provincial agreement between the Canadian federal government and the governments of all Canadian provinces and territories. Chapter Five of the AIT deals specifically with procurement obligations. In terms of dispute resolution mechanisms, the AIT prescribes the bid protest procedures that will apply at the provincial and federal government levels. The procedures are different depending on whether the protest relates to provincial or federal procurement.
At the federal level, the CITT deals with supplier complaints under the AIT. At the provincial level, there are no equivalent tribunals to the CITT. The AIT instead contemplates a process under which the first-level remedy for a supplier involves provincial government to provincial government contact. If this is unsuccessful in resolving the complaint, then a special review panel may be appointed.
