Memorandum of Understanding

To provide suppliers of the Government of Canada with easier and more timely access to the Office of the Procurement Ombudsman and the Canadian International Trade Tribunal and to provide for continued cooperation between the two organizations.

Between
The Office of the Procurement Ombudsman
Represented by the Procurement Ombudsman

And
The Canadian International Trade Tribunal
Represented by the Chairperson of the Canadian International Trade Tribunal

Collectively referred to as the "Participants"

Effective Date: October 1, 2020

Introduction

WHEREAS the Office of the Procurement Ombudsman (hereinafter, the OPO) is a neutral and independent organization of the Government of Canada that is responsible, among other mandates and as relevant for this Memorandum of Understanding (hereinafter MOU), for the provision to individuals, and Canadian businesses, with fair, transparent, and timely processes for the investigation of complaints concerning certain federal government procurements; the mandate and functioning of the OPO are set out in the Department of Public Works and Government Services Act, S.C. 1996, c. 16, and Procurement Ombudsman Regulation, SOR/2018-143;

WHEREAS the Canadian International Trade Tribunal (hereinafter, the CITT) is a federal quasi-judicial tribunal that is responsible, among other mandates and as relevant for this MOU, for the provision to individuals, and Canadian and international businesses, with fair, transparent, and timely processes for the investigation of complaints concerning certain federal government procurements; the mandate and functioning of the CITT are set out in the Canadian International Trade Tribunal Act, R.S.C., 1985, c. 47 (4th Supp.), the Canadian International Trade Tribunal Procurement Inquiry Regulations, SOR/93-602, and the Canadian International Trade Tribunal Rules, SOR/91-499;

WHEREAS suppliers of the federal government who feel aggrieved in regards to the manner in which a procurement process has been conducted must address their concerns to the OPO or the CITT (hereinafter, the Participants) within short timeframes (in brief, and typically: 30 working days in the case of complaints that are to be filed with the OPO, and 10 working days in the case of those to be directed to the CITT), failing which the Participants are often time-barred by law from addressing suppliers’ concerns;

WHEREAS the Participants have repeatedly noted that many suppliers lack information sufficient to effectively allow them to address their concerns to the Participants in a timely manner, that the proper forum for direction of such concerns is not always immediately ascertainable by suppliers, that the time necessary to establish the proper forum may render a supplier’s complaint untimely by the operation of the law;

WHEREAS the Participants are intent on ensuring suppliers’ access to available recourse mechanisms and reducing their administrative burden when directing their concerns;

WHEREAS the Participants believe that more streamlined, and easier access by suppliers to the mechanisms that they administer are fundamental tenets of their respective mandates meant to enhance the integrity of the competitive procurement system, its fairness and impartiality, and to uphold the principle of value for money, and the proper stewardship of public funds;

Therefore the Office of the Procurement Ombudsman and the Canadian International Trade Tribunal agree as follows:

  1. The Participants will actively offer suppliers the opportunity to have a summary of their complaint transmitted to the other organization, for triage purposes, in order to establish, in the timeliest manner possible, which of the OPO or the CITT has, at first sight, jurisdiction to address a supplier’s concerns
  2. A summary referred to in paragraph 1 will contain no business-confidential information
  3. In collaboration with each other, the Participants will establish administrative practices and procedures to ensure that a supplier’s complaint is addressed by the OPO or the CITT, in accordance with the requirements of the law. Such practices and procedures may be amended from time to time (see Annex A to this MOU), as the Participants deem necessary
  4. The CITT may be represented in discussions with the OPO by officials of the Secretariat to the Canadian International Trade Tribunal of the Administrative Tribunals Support Service of Canada (hereinafter, the CITT Secretariat) designated by the Chairperson of the CITT and for such purpose as the Chairperson of the CITT deems appropriate. The titles of the officials of the CITT Secretariat so designated and any limitations to their powers, if any, are set forth in Annex C. Annex C can be amended at any time by notice given by the Chairperson of the CITT to the Procurement Ombudsman
  5. The OPO may be represented in discussions with the CITT by officials of the OPO as designated by the Procurement Ombudsman and for such purpose as the Ombudsman deems appropriate. The titles of the officials of the OPO so designated and any limitations to their powers, if any, are set forth in Annex C. Annex C can be amended at any time by notice given by the Procurement Ombudsman to the Chairperson of the CITT
  6. The Participants will meet on a regular basis to consider various issues of systemic common interest, including the opportunity to amend this MOU and its annexes, and at a regular frequency, as envisaged and detailed in Annex D
  7. Each Annex to this MOU forms an integral part of this MOU and is to be interpreted in a manner consistent with this MOU
  8. There are no financial costs associated with this MOU
  9. This MOU may be amended by the written consent of the Participants
  10. The Procurement Ombudsman and the Chairperson of the CITT, for the OPO and the CITT respectively, have overall administrative responsibility for this MOU and its Annexes. They may delegate certain responsibilities to certain Designated Officials in each organization, with certain limitations, as contemplated by Annex C
  11. This MOU will commence upon execution by the Participants and will remain in effect until it is terminated in accordance with the provision below
  12. This MOU may be terminated for any reason by either Participant on 30 days written notice.  Termination does not release a Participant from any responsibilities which accrued while the MOU was in force

Signing authorities

For the Office of the Procurement Ombudsman:
Alexander Jeglic
Date:
September 23, 2020
For the Canadian International Trade Tribunal:
Jean Bedard
Date:
September 23, 2020

Annex A

Administrative pactices and pocedures

  1. Each Participant has provided a section in its respective Complaint Forms, offering and explaining why a complainant may want to allow a Participant to share certain public information pertaining to its complaint with the other Participant
  2. This option is voluntary, so it is only done at a complainant’s request
  3. The purpose of this option is to enable the Participants to quickly assess the appropriate forum for a complaint, and to mitigate the risk that a complaint may be time-barred if it is mistakenly addressed to one of the Participants instead of the other
  4. The information to be shared is limited to the name and contact information of a complainant; the solicitation or contract that the complaint pertains to; the value of the solicitation or contract; whether a contract has been awarded (for the purposes of the OPO only); and a summary of the grounds of complaint against the relevant government institution. This is explained in the Participant’s respective Complaint Forms [see Forms Annex B]
  5. When authorized to do so by a complainant, the Participants will communicate with each other, in writing via email, to ensure there is a written record of the sharing of information between the Participants

Annex B

Forms

1. For clarity

each Participant will have the same text (with one exception described in the next sentence) included in its respective complaint form allowing complainants the option to share certain information regarding a complaint with the other Participant. The exception referred to in the previous sentence is as follows: the CITT’s form will ask complainants “whether a contract has been awarded”; the OPO’s form will not. The difference appears in bold typeface in paragraph 3 below (and for illustrative purposes in this annex only—bolding will not be included in the form when published). As such, that information will be transmitted to the OPO by the CITT; the CITT does not require that information, which explains why the text in bold typeface at paragraph 3 is absent from the text at paragraph 2.

2. Text for inclusion in the Office of the Procurement Ombudsman Complaint Form

(that is for purposes of information transmission by the OPO to the CITT)

"Please check this box [insert square box] if you agree to allow the Office of the Procurement Ombudsman to share with the [Canadian International Trade Tribunal—Hyperlinked] your name and contact information; the solicitation or contract number that the complaint pertains to; the value of the solicitation or contract; and a summary of the grounds of your complaint against the relevant government institution. The OPO and the CITT provide this service so that you may address your complaint to one or the other in the timeliest manner possible. For more information on why this service is provided please click [here—hyperlinked to text on websites]."

3. Text for inclusion in the Canadian International Trade Tribunal Complaint Form

(that is for purposes of information transmission by the CITT to the OPO)

"Please check this box [insert square box] if you agree to allow the Canadian International Trade Tribunal to share with the [Office of the Procurement Ombudsman - Hyperlinked] your name and contact information; the solicitation or contract number that the complaint pertains to; the value of the solicitation or contract; whether a contract has been awarded; and, a summary of the grounds of your complaint against the relevant government institution. The OPO and the CITT provide this service so that you may address your complaint to one or the other in the timeliest manner possible. For more information on why this service is provided please click [here—hyperlinked to text on websites]."

Annex C

Designated officials of the Canadian International Trade Tribunal secretariat and limitations

  • The Executive Director
  • The Senior Legal Counsel responsible for advising the members of the CITT in regards to its Procurement Review mandate
  • The Director of Research and Innovation; (hereinafter, collectively referred to as the designated officials)

The designated officials will act as the liaison between the OPO and the CITT, one or several of them may attend meetings on behalf of the CITT and generally ensure that the objectives of this MOU are met. However, the designated officials or any of them cannot consent to any amendment to this MOU or initiate its termination.

Designated officials of the Office of the Procurement Ombudsman and limitations

  • The Deputy Procurement Ombudsman
  • The Director of Procurement Inquiries and Reviews
  • The Director of Quality Assurance and Risk Management
  • The Director of Communications and Corporate Management

The designated officials will act as the liaison between the OPO and the CITT, one or several may attend meetings on behalf of the OPO and generally ensure that the objectives of this MOU are met. However, the designated officials cannot consent to any amendment to this MOU or initiate its termination.

Annex D

Forward looking possible action items

1. Collaboration for outreach

The Participants intend to raise awareness of their respective mandates amongst those intended to benefit from their services (for exemple Canadian businesses) by means such as: information about the other Participant on their respective websites; slides referencing the other Participant in presentations; and collaborative outreach presentations to shared audiences. All references to the other Participant must be vetted and approved by that Participant in advance of publication in order to ensure accuracy.

2. Management of complaints involving service providers

OPO is seeking a third party to review complaints from Canadian businesses regarding contracts awarded by OPO. These complaints would normally fall under the Procurement Ombudsman’s jurisdiction and be subject to the Procurement Ombudsman Regulations, however, since the party that awarded the contract is OPO, it may be perceived as unfair if the Procurement Ombudsman presided over the review of the complaint. Therefore, OPO wishes to explore with the CITT the feasibility of entering into an agreement which would provide that in these instances (which are expected to be rare since none have arisen since OPO commenced operations in 2008), the review of such a complaint would be conducted by an ad hoc adjudicator who would be a Member of the CITT designated by the Chairperson of the CITT and that OPO would reimburse the Administrative Tribunals Support Service of Canada (ATSSC), for costs incurred either by the CITT or the ATSSC in connection with the review of the complaint. The agreement would further provide that, as the contract would fall within the Procurement Ombudsman’s jurisdiction, that is meet the criteria set forth in the Procurement Ombudsman Regulations, the Member of the CITT conducting the review would limit its determinations to what is provided in the Procurement Ombudsman Regulations, for example recommendations, and a maximum of 10% of the value of the contract as recommended compensation.

3. Review of frequently asked questions

Each Participant will develop its own frequently asked questions (FAQs) for its website and other publications. References to the other Participant must be vetted and approved by that Participant in advance of publication in order to ensure accuracy.

4. Review of Memorandum of Understanding operations

The Participants will meet at least once annually to discuss the operations of the MOU and ensure the desired outcomes are being achieved in an efficient and timely manner.

5. Advancement of procurement Knowledge

Each Participant is committed to exploring the feasibility of initiating a university/college level moot court competition dealing with matters of procurement law. This is intended to broaden various audiences’ understanding of procurement issues and help foster greater knowledge, understanding, and appreciation of procurement matters amongst them with a view of providing sustained service to Canadian Suppliers into the future.