Memorandum of Understanding

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

Annex A

Annex B

Annex C

Annex D