Regulations Amending the Canadian International Trade Tribunal Procurement Inquiry Regulations (Miscellaneous Program): SOR/2020-66
Canada Gazette, Part II, Volume 154, Number 9
Registration
SOR/2020-66 April 7, 2020
CANADIAN INTERNATIONAL TRADE TRIBUNAL ACT
P.C. 2020-219 April 3, 2020
Her Excellency the Governor General in Council, on the recommendation of the Minister of Finance, pursuant to section 40 footnote a of the Canadian International Trade Tribunal Act footnote b, makes the annexed Regulations Amending the Canadian International Trade Tribunal Procurement Inquiry Regulations (Miscellaneous Program).
Regulations Amending the Canadian International Trade Tribunal Procurement Inquiry Regulations (Miscellaneous Program)
Amendments
1 The definition NAFTA in section 2 of the Canadian International Trade Tribunal Procurement Inquiry Regulations footnote 1 is repealed.
2 (1) Subsection 3(1) of the Regulations is replaced by the following:
3 (1) For the purposes of the definition designated contract in section 30.1 of the Act, any contract or class of contract concerning a procurement of goods or services or any combination of goods or services, as described in Article II of the Agreement on Government Procurement, in Article Kbis-01 of Chapter Kbis of the CCFTA, in Article 1401 of Chapter Fourteen of the CPFTA, in Article 1401 of Chapter Fourteen of the CCOFTA, in Article 16.02 of Chapter Sixteen of the CPAFTA, in Article 17.2 of Chapter Seventeen of the CHFTA, in Article 14.3 of Chapter Fourteen of the CKFTA, in Article 19.2 of Chapter Nineteen of CETA, in Article 504 of Chapter Five of the CFTA, in Article 10.2 of Chapter Ten of CUFTA or in Article 15.2 of Chapter Fifteen of the TPP, that has been or is proposed to be awarded by a government institution, is a designated contract.
(2) Paragraphs 3(2)(a) and (b) of the Regulations are replaced by the following:
- (a) the federal government entities set out under the heading “CANADA” in Annex 1 of the Agreement on Government Procurement, in the Schedule of Canada in Annex Kbis-01.1-1 of Chapter Kbis of the CCFTA, in the Schedule of Canada in Annex 1401.1-1 of Chapter Fourteen of the CPFTA, in the Schedule of Canada in Annex 1401-1 of Chapter Fourteen of the CCOFTA, in the Schedule of Canada in Annex 1 of Chapter Sixteen of the CPAFTA, in the Schedule of Canada in Annex 17.1 of Chapter Seventeen of the CHFTA, in the Schedule of Canada in Annex 14-A of Chapter Fourteen of the CKFTA, in Annex 19-1 of Annex 19-A in Chapter Nineteen of CETA, in Annex 10-1 of the Market access schedule of Canada in Chapter 10 of CUFTA or in Section A of the Schedule of Canada in Annex 15-A of Chapter Fifteen of the TPP or the federal government entities that are procuring entities as referred to in Article 504.2 of the CFTA;
- (b) the federal government enterprises set out under the heading “CANADA” in Annex 3 of the Agreement on Government Procurement, in the Schedule of Canada in Annex Kbis-01.1-2 of Chapter Kbis of the CCFTA, in the Schedule of Canada in Annex 1401.1-2 of Chapter Fourteen of the CPFTA, in the Schedule of Canada in Annex 1401-2 of Chapter Fourteen of the CCOFTA, in the Schedule of Canada in Annex 2 of Chapter Sixteen of the CPAFTA, in the Schedule of Canada in Annex 17.2 of Chapter Seventeen of the CHFTA, in the Schedule of Canada in Annex 14-A of Chapter Fourteen of the CKFTA, in Annex 10-2 of the Market access schedule of Canada in Chapter 10 of CUFTA or in Section C of the Schedule of Canada in Annex 15-A of Chapter Fifteen of the TPP or the federal government enterprises referred to in Annex 19-3 of Annex 19-A in Chapter Nineteen of CETA or the federal government enterprises that are procuring entities as referred to in Article 504.2 of the CFTA; and
3 Paragraph 5(a) of the Regulations is replaced by the following:
- (a) if a notice of proposed procurement was published in accordance with one or more of the Agreement on Government Procurement, the CCFTA, the CPFTA, the CCOFTA, the CPAFTA, the CHFTA, the CKFTA, CETA, the CFTA, CUFTA and the TPP, at the time that the notice was published; or
4 Paragraph 6(3)(b) of the Regulations is replaced by the following:
- (b) the complaint concerns any aspect of the procurement process, of a systemic nature, relating to a designated contract, and compliance with one or more of the Agreement on Government Procurement, Chapter Kbis of the CCFTA, Chapter Fourteen of the CPFTA, Chapter Fourteen of the CCOFTA, Chapter Sixteen of the CPAFTA, Chapter Seventeen of the CHFTA, Chapter Fourteen of the CKFTA, Chapter Nineteen of CETA, Chapter Five of the CFTA, Chapter Ten of CUFTA and Chapter Fifteen of the TPP.
5 Paragraph 7(1)(c) of the Regulations is replaced by the following:
- (c) the information provided by the complainant, and any other information examined by the Tribunal in respect of the complaint, discloses a reasonable indication that the procurement has not been conducted in accordance with whichever of the Agreement on Government Procurement, Chapter Kbis of the CCFTA, Chapter Fourteen of the CPFTA, Chapter Fourteen of the CCOFTA, Chapter Sixteen of the CPAFTA, Chapter Seventeen of the CHFTA, Chapter Fourteen of the CKFTA, Chapter Nineteen of CETA, Chapter Five of the CFTA, Chapter Ten of CUFTA or Chapter Fifteen of the TPP applies.
6 (1) Paragraph 10(1)(a) of the Regulations is replaced by the following:
- (a) after taking into consideration the Act, these Regulations and, as applicable, the Agreement on Government Procurement, the CCFTA, the CPFTA, the CCOFTA, the CPAFTA, the CHFTA, the CKFTA, CETA, the CFTA, CUFTA or the TPP, the Tribunal determines that the complaint has no valid basis;
(2) Subsection 10(2) of the Regulations is replaced by the following:
(2) The Tribunal shall order the dismissal of a complaint in respect of which a national security exception set out in the Agreement on Government Procurement, the CCFTA, the CPFTA, the CCOFTA, the CPAFTA, the CHFTA, the CKFTA, CETA, the CFTA, CUFTA or the TPP, as applicable, has been properly invoked by the relevant government institution.
7 Section 11 of the Regulations is replaced by the following:
11 If the Tribunal conducts an inquiry into a complaint, it shall determine whether the procurement was conducted in accordance with the requirements set out in whichever of the Agreement on Government Procurement, the CCFTA, the CPFTA, the CCOFTA, the CPAFTA, the CHFTA, the CKFTA, CETA, the CFTA, CUFTA or the TPP applies.
Transitional Provision
8 (1) A contract or class of contract that is designated in Article 1001 of NAFTA, as defined in section 2 of the Canadian International Trade Tribunal Procurement Inquiry Regulations as it read immediately before the coming into force of these Regulations, and for which the procurement requirements are decided before the day on which these Regulations come into force by the government institution, as designated under subsection 3(2) of those Regulations as it read immediately before the day on which these Regulations come into force, is a designated contract for the purpose of the definition designated contract in section 30.1 of the Act.
(2) Paragraphs 5(a), 6(3)(b), 7(1)(c) and 10(1)(a), subsection 10(2) and section 11 of those Regulations, as they read immediately before the day on which these Regulations come into force, apply in relation to an inquiry conducted under subsection 30.11(1) of the Act in respect of a designated contract referred to in subsection (1).
Coming into Force
9 These Regulations come into force on the day on which section 138 of the Canada-United States-Mexico Agreement Implementation Act, chapter 1 of the Statutes of Canada, 2020, comes into force, but if they are registered after that day, they come into force on the day on which they are registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the regulations.)
Issues
On November 30, 2018, Canada, the United States and Mexico signed the Canada–United States–Mexico Agreement (CUSMA or the “Agreement”), with some further provisions agreed between the three countries on December 10, 2019. CUSMA will replace the North American Free Trade Agreement (NAFTA) that currently provides for free trade on the continent. In order to implement CUSMA, the Canada–United States–Mexico Agreement Implementation Act (the “Act”) was tabled in the House of Commons on January 29, 2020, and received royal assent on March 13, 2020.
In order to implement the CUSMA outcomes concerning government procurement and bilateral safeguards, consequential amendments to the Canadian International Trade Tribunal Procurement Inquiry Regulations and the Canadian International Trade Tribunal Regulations are required.
The Canadian International Trade Tribunal (CITT) is responsible for inquiring into complaints made by potential suppliers of goods or services relating to federal government procurement that is covered by various trade agreements. These procurement inquiries are governed by the Canadian International Trade Tribunal Procurement Inquiry Regulations.
The CITT is also responsible for conducting bilateral safeguard inquiries, which consider whether increased imports resulting from preferential treatment provided for in a free trade agreement are a principal cause of serious injury, or threat thereof, to domestic producers of like or directly competitive goods. The Canadian International Trade Tribunal Regulations set out factors that the CITT must examine when conducting bilateral safeguard inquiries.
Objective
To support CUSMA implementation by implementing the CUSMA outcomes concerning government procurement and bilateral safeguards.
Description and rationale
The Canadian International Trade Tribunal Procurement Inquiry Regulations are amended to remove references to NAFTA. NAFTA included rules and market-access commitments that allowed Canadian businesses to access the procurement markets of the United States and Mexico. Since that time, Canada improved upon those commitments with the United States in the revised World Trade Organization Agreement on Government Procurement and with Mexico in the Comprehensive and Progressive Agreement for Trans-Pacific Partnership. As such, government procurement between Canada and the United States, and Canada and Mexico will be governed by those respective agreements, rather than by CUSMA.
Consequential amendments have also been made to the Canadian International Trade Tribunal Regulations to remove references to bilateral safeguard provisions repealed from the Canadian International Trade Tribunal Act through the Act to implement the Agreement between Canada, the United States of America and the United Mexican States. This reflects the bilateral safeguard outcome of CUSMA. NAFTA included transitional bilateral safeguard provisions that provided that a NAFTA party may impose a bilateral safeguard measure on goods (including textile and apparel goods) from another party when, as a result of the tariff benefits under NAFTA, goods were imported in such increased quantities and under such conditions that they caused or threatened to cause serious injury to domestic producers. As the bilateral safeguard obligations were transitional in nature, they were not replicated in CUSMA.
One-for-one rule
The one-for-one rule does not apply to these amendments, as there is no change in administrative costs or burden to business.
Small business lens
The small business lens does not apply to these amendments, as there are no costs to small businesses.
Contact
Brittany McNena
International Trade Policy Division
Department of Finance Canada
Ottawa, Ontario
K1A 0G5
Telephone: 613‑369‑3962