P-38.2Department of Public Works and Government Services ActSOR/2008-14320085
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DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES ACTProcurement Ombudsman RegulationsP.C.2008-83120085
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Her Excellency the Governor General in Council, on the recommendation of the Minister of Public Works and Government Services, pursuant to section 23.1a of the Department of Public Works and Government Services Actb, hereby makes the annexed Procurement Ombudsman Regulations.S.C. 2006, c. 9, s. 307S.C. 1996, c. 16INTERPRETATION
The following definitions apply in these Regulations.Act means the Department of Public Works and Government Services Act. (Loi)contracting department means the department that awards the contract to which a complaint relates. (ministère contractant)working day means a day that is not a Saturday or a holiday. (jour ouvrable)
APPLICATION
These Regulations applywith respect to sections 7 to 14, to a contract for the acquisition of materiel or services that is awarded after the coming into force of these Regulations;with respect to sections 15 to 22, to a contract for the acquisition of materiel or services if the facts or grounds on which the complaint is based arise after the coming into force of these Regulations; andwith respect to section 23, to a contract for the acquisition of materiel or services if a dispute referred to in that section arises after the coming into force of these Regulations.
PERFORMANCE OF THE DUTIES AND FUNCTIONS OF THE PROCUREMENT OMBUDSMANException
The Procurement Ombudsman shall not perform the duties and functions referred to in subsection 22.1(3) of the Act in respect of the following departments:the Canadian Security Intelligence Service; andthe staff of the Senate and the House of Commons.
Review of Departmental Practices for Acquiring Materiel and ServicesReview
The Procurement Ombudsman shall review the practices of a department for acquiring materiel and services under paragraph 22.1(3)(a) of the Act if there are reasonable grounds to do so and shall take into consideration the following factors:consistency with relevant Cabinet policies and procedures, with relevant multi-departmental policies and procedures and with policies and procedures related to a national security exemption;consistency with the Financial Administration Act and regulations made under it;the resources that would be required of that department to respond to the review;the observations or findings of any previous audits or assessments; andthe time that has elapsed since his or her previous review of the practices of that department.If the Procurement Ombudsman reviews the practices of a department under subsection (1), he or she may request that it provide any document or information necessary for the review.
Recommendations
Before making any recommendations under paragraph 22.1(3)(a) of the Act, the Procurement Ombudsman shalltake into consideration the following factors:consistency with relevant cabinet policies and procedures, with relevant multi-departmental policies and procedures and with policies and procedures related to a national security exemption,consistency with the Financial Administration Act and regulations made under it,the seriousness of any inconsistency with the principles of fairness, openness and transparency, andthe potential impact that the recommendations could have on the government’s operations or resources; andprovide an opportunity to the department whose practices have been subject to the review to make comments on the proposed recommendations and the reasons for them within 30 working days after their receipt.
If the Procurement Ombudsman makes recommendations under paragraph 22.1(3)(a) of the Act, he or she shall provide them, together with reasons, within one year after the commencement of a review and shall also provide a copy of them to the Minister without delay.If the Procurement Ombudsman cannot provide the recommendations within the period set out in subsection (1), before the expiry of that period, he or she shall provide interim recommendations, together with the reasons for the delay, and shall provide the final recommendations within 120 working days after the provision of the interim recommendations.
Review of a Complaint Under Paragraph 22.1(3)(b) of the ActFiling of a Complaint Under Paragraph 22.1(3)(b) of the Act
A complaint under paragraph 22.1(3)(b) of the Act shall be filed in writing with the Procurement Ombudsmanwithin 30 working days after public notice of the award of contract to which the complaint relates; orif there was no public notice, within 30 working days after the day on which the award of contract became known or reasonably should have become known to the complainant.If, for reasons beyond the control of the complainant, the complainant is not able to file a complaint with the Procurement Ombudsman within the period set out in paragraph (1)(a) or (b), as the case may be, the Procurement Ombudsman may, at the request of the complainant, extend those periods to a maximum of 90 working days.If a complainant has previously contacted the contracting department to object to the award of a contract within the period set out in paragraph (1)(a) or (b), as the case may be, a complaint under subsection (1) shall be filed in writing with the Procurement Ombudsman within 30 working days after day on which the contracting department denied the objection.The complaint is filed when the following information and documents are submitted to the Procurement Ombudsman:the name and address of the complainant;information identifying the contract to which the complaint relates, including the date of public notice of the award of contract or, if there was no public notice, the date of award of that contract, if known;the name of the contracting department and, if applicable, of the department for which the materiel or services are intended under the contract to which the complaint relates;information and documents establishing that the complainant meets the requirement set out in subsection 22.2(1) of the Act;a clear and detailed statement setting out the facts and grounds on which the complaint is based;a declaration by the complainant stating that the facts and grounds on which the complaint is based are not and have not been the subject of an inquiry before the Canadian International Trade Tribunal or a proceeding in a court of competent jurisdiction; andupon request of the Procurement Ombudsman for the purpose of section 13,a calculation, together with supporting documents, of the net profit that the complainant would have realized, had it been awarded that contract, at the lower of the amount it bid, if any, and the amount at which the contract was awarded, without including the value of any options or any extensions of the contract, less the cost of submitting the bid, if any, andthe complainant’s costs of submitting the bid and supporting documentation.
Review
The Procurement Ombudsman shall determine whether to review a complaint referred to in subsection 7(1) within 10 working days after the filing of the complaint, and shall, without delay, notify the complainant and the contracting department of his or her decision and, at that time, provide that department with a copy of the complaint.
The Procurement Ombudsman shall review a complaint referred to in subsection 7(1), ifthe contract, the award of which is the subject of the complaint, is not covered by any of the exemptions or exceptions in the Agreement, as defined in section 2 of the Agreement on Internal Trade Implementation Act, including those made under articles 1802 to 1806 of the Agreement, and is one to which the Agreement would apply if its value, as determined under article 505 of the Agreement, were not less than the amount set out in article 502 of the Agreement;the requirements set out in subsection 22.2(1) of the Act and section 7 have been met;the facts and grounds on which the complaint is based are not and have not been the subject of an inquiry before the Canadian International Trade Tribunal or a proceeding in a court of competent jurisdiction; andthere are reasonable grounds to believe that the contract was not awarded in accordance with regulations made under the Financial Administration Act.If the Procurement Ombudsman reviews the complaint under subsection (1), he or she may request that the complainant or the contracting department provide any document or information necessary for the review.
The Procurement Ombudsman shall end the review and notify the complainant and the contracting department of that fact and the reasons for it, ifthe complainant withdraws the complaint;one or more of the requirements set out in section 7 or 9 have not been met;the award of contract has been cancelled; orthe Procurement Ombudsman determines that the complaint is frivolous or vexatious.
Procedures
Subject to subsection (2), the Procurement Ombudsman shall review complaints under a simple process and allow the contracting department 15 working days after the receipt of the notice referred to in section 8 to provide its comments on the complaint.The Procurement Ombudsman shall review a complaint under an expanded process on the request of the complainant or the contracting department, or if the Procurement Ombudsman determines that the circumstances warrant an expanded process, taking into consideration any relevant factors, including the following:the nature of the complaint;the value of the contract;the complexity of the bid requirements or the procurement process; andthe potential impact that the findings and any recommendations could have on the government’s operations or resources.The Procurement Ombudsman shall without delay notify the complainant and the contracting department that a complaint is to be reviewed under an expanded process.Under an expanded process, the Procurement Ombudsman shallprovide the contracting department with a period of at least 25 working days after the receipt of the notice referred to in subsection (3) to provide comments with respect to the complaint and may, on the request of that department, allow it to provide its comments after that period, having regard to the complexity of the bid requirements or the procurement process;provide the complainant with a copy of the department’s comments and an opportunity to respond within 10 working days after the receipt of the copy and may, on the request of the complainant, allow it to provide its response after that period, having regard to the complexity of the bid requirements or the procurement process; andprovide the department with a copy of the complainant’s response and an opportunity to respond within 10 working days after the receipt of the copy if the complainant raises new arguments or evidence in its response and may, on the request of the department, allow the department to provide its response after that period, having regard to the complexity of the bid requirements or the procurement process.
Findings
For the purpose of his or her review, the Procurement Ombudsman shall take into consideration any relevant factors, including the following:whether the complainant would have had a reasonable prospect of being awarded the contract, but for the actions of the contracting department;the seriousness of any deficiency in complying with the regulations made under the Financial Administration Act;the failure or refusal of the complainant to provide information about its goods and services at the request of the contracting department;the degree to which the complainant was prejudiced;the degree to which the fairness, openness or transparency of the procurement process was prejudiced; andwhether any of the parties acted in bad faith.The Procurement Ombudsman shall not substitute his or her opinion for the judgment of the persons involved in the acquisition process for the contract in relation to the assessment of any bid, unless there is insufficient written evidence to support that assessment or the assessment is unreasonable.
RecommendationsCompensation
Subject to subsection (2), the Procurement Ombudsman may recommend payment ofcompensation in respect of the profit that the complainant would have realized if, but for the actions of the contracting department, it had been awarded the contract, which compensation may not exceed the lesser ofthe net profit that the complainant would have realized, had it been awarded the contract, at the lower of the amount that it bid, if any, and the amount at which the contract was awarded, without including the value of any options or any extensions of the contract, less the cost of submitting the bid, if any; and10% of the value of the contract awarded without including the value of any options or any extensions of the contract, less the cost of submitting the bid, if any; orcompensation equal to the costs of submitting the bid but that compensation may not exceed 10% of the value of the contract awarded, without including the value of any options or any extensions of the contract.If a competitive process was held, the complainant must have submitted a bid in respect of the contract to which the complaint relates, unless it was prevented from doing so because of the actions of the contracting department.
Findings and Recommendations
The Procurement Ombudsman shall provide his or her findings or any recommendations under subsection 22.2(3) of the Act within 120 working days after the day on which the complaint is filed.
Review of a Complaint Under Paragraph 22.1(3)(c) of the ActFiling of a Complaint Under Paragraph 22.1(3)(c) of the Act
A person may file a complaint under paragraph 22.1(3)(c) of the Act only if, in addition to meeting the requirement set out in subsection 22.2(1) of the Act, the person has been awarded the contract to which the complaint relates.
A complaint under paragraph 22.1(3)(c) of the Act shall be filed in writing with the Procurement Ombudsman within 30 working days after the day on which the complainant became aware, or reasonably should have become aware, of the grounds on which the complaint is based.If, for reasons beyond the control of the complainant, the complainant is not able to file a complaint with the Procurement Ombudsman within the period set out in subsection (1), the Procurement Ombudsman may, at the request of the complainant, extend that period to a maximum of 90 working days.If a complainant has previously contacted the contracting department to object to the administration of a contract within the period set out in subsection (1), a complaint under that subsection shall be filed in writing with the Procurement Ombudsman within 30 working days after day on which the contracting department denied the objection.The complaint is filed when the following information and documents are submitted to the Procurement Ombudsman:the name and address of the complainant;information identifying the contract to which the complaint relates and, on the request of the Procurement Ombudsman, a copy of that contract;the name of the contracting department and, if applicable, the department for which the materiel or services are intended under the contract to which the complaint relates;information and documents establishing that the complainant meets the requirements set out in subsection 22.2(1) of the Act and in section 15; anda statement of the complaint, setting out the facts and grounds on which the complaint is based.
Review
The Procurement Ombudsman shall determine whether to review a complaint referred to in subsection 16(1) within 10 working days after the filing of the complaint, and shall, without delay, notify the complainant and the contracting department of his or her decision, and provide that department with a copy of the complaint.
The Procurement Ombudsman shall review a complaint referred to in subsection 16(1), if the requirements set out in subsection 22.2(1) of the Act and in sections 15 and 16 have been met and the interpretation and application of the terms and conditions or the scope of the work of the contract are not in dispute between the parties.If the Procurement Ombudsman reviews the complaint under subsection (1), he or she may request that the complainant or the contracting department provide any document or information necessary for the review.
The Procurement Ombudsman shall end the review and notify the complainant and the contracting department of that fact and the reasons for it, ifthe complainant withdraws the complaint;one or more of the requirements set out in subsection 22.2(1) of the Act, section 15 or 16 have not been met; orthe Procurement Ombudsman determines that the complaint is frivolous or vexatious.
Findings and Recommendations
For the purpose of the review, the Procurement Ombudsman shall take into consideration any relevant factors, including the following:whether the administration of the relevant contract was conducted in a reasonable manner in the circumstances; andwhether any of the parties acted in bad faith.
The Procurement Ombudsman may not make recommendationsaltering the terms and conditions of a contract; orproviding a remedy other than as specified in the contract.
The Procurement Ombudsman shall provide, in accordance with subsection 22.2(3) of the Act, his or her findings and any recommendations within 120 working days after the day on which the complaint is filed.
Alternative Dispute Resolution Process
If a party to a contract requests an alternative dispute resolution process under paragraph 22.1(3)(d) of the Act with respect to a dispute on the interpretation or application of a contract’s terms and conditions, the Procurement Ombudsman shall ask the other parties if they agree to participate in such a process and to bear the costs of that process, within 10 working days after the request, and permit those parties 10 working days to respond to his or her request.The Procurement Ombudsman shall receive a request that is in writing and includesthe names of the parties to the contract;a copy of the contract; anda brief summary of the facts in issue.Within 10 working days after receiving the last of the other parties’ responses,if all parties agree, the Procurement Ombudsman shall submit to the parties a proposal for an alternative dispute resolution process; andif the parties do not agree, the Procurement Ombudsman shall notify the party who made the request that the request cannot be granted.
COMING INTO FORCE
These Regulations come into force on the day on which section 307 of the Federal Accountability Act, chapter 9 of the Statutes of Canada, 2006, comes into force, but if it is after that day, they come into force on the day on which they are registered.[Note: Regulations in force May 5, 2008, see SI/2008-52.]