The previous blog post introduced the concept of trade agreements and summarized some of their general principles. This post starts to look at the various existing agreements that apply across Canada.  

New West Partnership Trade Agreement  

Starting in the west, the New West Partnership Trade Agreement (NWPTA) applies to public sector entities in British Columbia, Alberta and Saskatchewan. The NWPTA applies widely – first to the provinces themselves, including all ministries, second to Crown corporations and government owned commercial enterprises and third to municipal governments, school boards and health and social service entities (this third category is known as the MASH sector).

As with all trade agreements, the NWPTA contains thresholds to avoid the need to apply the strict procurement rules to smaller purchases. The thresholds are low for the provinces themselves – $10,000 for goods, $75,000 for services and $100,000 for construction – and increase for Crown corporations and are higher again for the MASH sector.  

The NWPTA contains a range of specific items that are exempt from the procurement rules, the most important of which are:  

  • procurement from philanthropic institutions, prisons or persons with disabilities
  • procurement from a public body or non-profit organization
  • health services and social services
  • where it can be demonstrated that only one supplier is able to meet the requirements
  • where an unforeseeable situation of emergency exists and the goods, services or construction could not be obtained in time by means of open procurement procedures
  • where the acquisition is of a confidential or privileged nature and disclosure could reasonably be expected to compromise government confidentiality, cause economic disruption or be contrary to the public interest
  • services provided by lawyers or notaries
  • the absence of a receipt of any bids in response to a call for tenders
  • treasury services

There is a three-step dispute resolution process in the NWPTA:

  •  Use of all reasonable means to resolve the dispute – so, if a government body has an internal complaints process, that process must be exhausted before moving on.
  •  Consultations between the relevant provinces – these may be triggered by a supplier who considers that the procurement rules have been breached.
  •  Reference to an impartial panel which will make a binding decision.

Complaints must be brought within two years from when the person first knew, or ought to have known, about the breach. If a person considers that a complaint may be valid under NWPTA or under the AIT, it must choose which process to use and, once a choice is made, there is no recourse under the other agreement.

The provinces remain in discussions on establishing an effective bid dispute mechanism that may result in the award of damages in favour of bidders.

The next post will look at the Agreement on Internal Trade.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.