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Covid-19 | Bulletin

The COVID Effect - Changes to Federal Government Procurements and Programs: Part 3

Fasken
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Procurement Bulletin

This is an update to our previous bulletins titled The COVID Effect - Changes to Federal Government Procurements and Programs and The COVID Effect - Changes to Federal Government Procurements and Programs: Part 2 for federal government suppliers, identifying changes in federal government procurement-related processes (current to the date of publication of this bulletin) and some of the essential steps they should be actively taking at this time:

What's Changed:

  • "Open Call" to Suppliers Now Closed: Following a 4-month run, Public Services and Procurement Canada (PSPC) has closed the "open call" for suppliers and is no longer accepting online submissions for goods and services to support the federal government's response to COVID-19. Solicitation for COVID-19 related goods and services will be posted on https://buyandsell.gc.ca/.
  • Bid Receiving Unit hours extended: For those responding to solicitations with submissions that cannot be made electronically, the physical location of the Bid Receiving Unit for the National Capital Region's limited hours have been extended to now include Monday to Friday from 9 am to 2 pm Eastern Time (ET). Those who are responding to solicitations are still encouraged to submit bids electronically using the Canada Post epost Connect application, where possible. The Bid Receiving Unit is monitored online Monday to Friday from 8 am to 4 pm (ET).
  • PPE Supply Hub: The federal government launched the PPE Supply Hub (Hub), which compiles resources for organizations that are buying and/or selling personal protective equipment (PPE).  The Hub contains links to provincial supply lists, information on PPE stockpiles in First Nations communities, federal procurement programs (which we have already detailed in previous update emails), government guidance and non-governmental websites.
  • Essential Services Contingency Reserve: Under the federal government's new Essential Services Contingency Reserve (ESCR), eligible essential service organizations can apply to obtain temporary (45-day), urgent access to PPE and other critical supplies. The ESCR supplies are provided to businesses and organizations on a cost-recovery basis. Support provided to provincial or territorial governments will not be cost recovered. Information about the application process and eligibility criteria is available on the ESCR website.    
  • COVID-19 Supply Council: The federal government established the COVID-19 Supply Council (Council), which is made up of a diverse group of leaders from business and industry. The Council's mandate is to "provide advice on current and future supply challenges" related to COVID-19, including "building supply chains for goods such as masks, gloves and disinfectants, including production, sourcing, shipping and distribution strategies". The Council will be convened until the end of 2020 but this term may be extended by the Minister of Public Services and Procurement if circumstances require it.    
  • Canadian International Trade Tribunal (CITT): The CITT has extended its cancellation of in-person appeal hearings until September 4, 2020. The CITT electronic filing system remains fully operational. All prescribed filing deadlines remain in effect and extensions can be requested.
  • Expedited Release of Gas Tax Funds to Provinces: The federal Gas Tax Fund provides funds to provinces and territories to fund municipal infrastructure priorities, such as public transit, roads and water management systems. These funds are normally provided twice a year to the provinces and territories.  This year, the federal government has announced that the delivery of funds will be accelerated and provided in a single payment. Links to a the details of the Gas Tax Fund in each province and territory can be found here.
  • Progressive reopening of closed construction sites: In conjunction with provincial reopening announcements, PSPC has been resuming federal construction activities that were suspended in provinces of Ontario and Quebec.
  • Federal Government "Return to Work" Guidance: The Treasury Board has released a Guidebook for departments on easing of restrictions: Federal worksites.  Deputy Heads are expected to develop plans that respect the unique worksites and operational realities of their respective departments, determining the extent to which employees ought to be asked to return to their usual worksites to support critical services, economic recovery, or government priorities. While departments will incrementally normalize programs and services as conditions improve, protecting employees and Canadians will require that, in most cases, departments will continue to maximize the use of remote work to the extent possible.
  • Replacement of NAFTA: On July 1, 2020, the Canada-United States-Mexico Agreement (CUSMA) came into force, replacing the North American Free Trade Agreement (NAFTA). As Canada is not a party to the government procurement chapter in CUSMA, it will maintain its government procurement commitments with the US through the World Trade Organization Agreement on Government Procurement and with Mexico through the Comprehensive and Progressive Agreement for Trans-Pacific Partnership. NAFTA will not apply to any procurements that commence on or after July 1, 2020. Contracting Policy Notice 2020-2 provides additional instruction to government departments in relation to the NAFTA-CUSMA transition.[1]

What Hasn't Changed:

  • Procurement processes: No additional Contracting Policy Notices related to COVID-19 have been released since Contracting Policy Notice 2020-1: Response to COVID-19,[2] which indicates that PSPC is "coordinating centralized purchases of specific commodities (for example, personal protective equipment)" on behalf of provinces and territories. PSPC has clarified that this coordinated effort is in addition to efforts taken by the provinces and territories to secure their own supply.
  • Continued service interruptions and/or program suspensions: The Contract Security Program and the Controlled Goods Program continue to operate at a reduced capacity and are processing requests on a priority-basis.
  • Expedited review for COVID-19 medical-related imports: Under an Interim Order made by the Minister of Health, an applicant for an authorization of importation or sale of a medical device that diagnoses, treats, mitigates or prevents COVID-19 may obtain an expedited review.
  • Many government facilities remain closed: Only workers providing direct or indirect necessary services and support remain on-site.

Essential Steps Contractors Should Take:

As the government looks to balance the fight against COVID-19 with reopening the economy, contractors should continue to stay informed of reopening measures and review the terms and conditions of their contracts carefully if they have not yet done so.

Those with an active CITT file with their in-person hearings now cancelled should seek immediate legal advice regarding filing deadlines. Timelines for filing complaints at the CITT are very short (more details can be found in our previous bulletin titled Beat the Clock - 10 Critical Days for Procurement Disputes Under the Trade Agreements).

As government needs and practices continue to shift to combat this pandemic, we remain dedicated in providing our clients with stability and certainty throughout the procurement process, and maintaining our commitment to provide timely and practical advice.

Marcia Mills is procurement counsel with the Fasken Ottawa office and has 20+ years of private and public sector experience working with governments and government suppliers regarding procurement and national security. She can be reached at mmills@fasken.com


 

[1] Treasury Board Secretariat, "Contracting Policy Notice 2020-2: Replacement of the North American Free Trade Agreement (NAFTA)", (30 June 2020)

[2] Treasury Board of Canada Secretariat, "Contracting Policy Notice 2020-1: Response to COVID-19" (23 March 2020)

 

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