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Bulletin | Covid-19

The COVID Effect - Changes to Federal Government Procurements and Programs: Part 4

Fasken
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Procurement Law Bulletin

Note: the government is seeking input on proposed changes to the Vendor Performance Management Policy. Comments are due by February 19, 2021. See below for further details.

This is an update to our Part 1, Part 2 and Part 3 bulletins 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:

  • The Canada-United Kingdom Trade Continuity Agreement: As noted in our January Bulletin, 2021: New Year, New Trade Agreements and New Procurement Thresholds, Canada and the UK have negotiated a Trade Continuity Agreement.
  • Trade agreement thresholds have been updated: The thresholds for government procurement coverage under Canada’s national and international trade agreements have been updated. The updated thresholds can be consulted at the end of our recent bulletin.
  • Global Bid Opportunity Finder for small and medium-sized enterprises: The Canadian Commercial Corporation has launched the pilot of the Global Bid Opportunity Finder. This free web application is accessible to Canadian businesses and was created to help them recover from COVID-19 and scale their business through exports. The application will do this by consolidating bid opportunities from more than 195 countries and translating them into Canada’s two official languages.
  • BC has signed on to the Canadian Collaborative Procurement Initiative: British Columbia has signed an agreement with Public Services and Procurement Canada (PSPC) to participate in the Canadian Collaborative Procurement Initiative (CCPI). The CCPI enables provincial and territorial governments, as well as eligible municipalities, schools, universities, colleges, school boards and hospitals (MASH sector) and other entities such as Crown corporations to use select federal procurement instruments. For more information about the CCPI, see our bulletin about the initiative here.
  • Vaccine rollout is underway: In one of the largest and most complex health interventions in history, the federal government is responsible for approving COVID-19 vaccines for use in Canada, negotiating and executing contracts to obtain vaccines, delivering vaccines to the provinces and territories, and supporting provinces and territories with vaccine distribution and administration. Concurrently, the provinces and territories are responsible for planning, sequencing, managing and communicating their vaccination plan, and administering vaccines to their populations.
  • Canadian International Trade Tribunal (CITT): The CITT has extended its cancellation of in-person appeal hearings until April 2, 2021. The CITT electronic filing system remains fully operational. All prescribed filing deadlines remain in effect and extensions can be requested. We note that the CITT is continuing to decide procurement complaints, with a high volume of decisions now being released.
  • 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 hours have been extended to now include Monday to Friday from 8 am to 4 pm (eastern time), but with limited staff available. Those who are responding to solicitations are still encouraged to submit bids electronically using the Canada Post epost Connect application, where possible.
  • Emergency contracting limits and reporting requirements: Under Contracting Policy Notice 2020-4: Updated Response to COVID-19 Temporary Amendments to Contracting Limits,[1] temporary increases to certain contracting limits related to the Government’s pandemic response have been extended, amended, or added to, and will remain in effect until June 30, 2021. These amendments to the Government’s Contracting Policy[2] extend the emergency contracting limits for all Ministers and the unlimited emergency contracting limit related to vaccines for the Minister of Public Services and Procurement. The amendments also establish an additional temporary exceptional contracting limit for the Minister of Public Services and Procurement to exercise options in emergency contracts and enter into and amend contracts up to $250M to support the pandemic response.
  • Vendor Performance Management Policy (VPMP) - New Pilot Program: Effective July 1, 2020, PSPC launched a new pilot Vendor Performance Management Policy. Intended to evaluate vendor performance under federal contracts, the new policy will provide for performance evaluations bi-annually during the contract, and then one final time at the end of the contract (with some exceptions). Vendor performance evaluations will use a scorecard system, including a vendor performance evaluation scale and key performance indicators. The policy has not been fully implemented as yet. Solicitations will identify which procurements (and thus, which vendors) will be subject to the pilot program. More information can be obtained here.
  • Proposed updates to the Code of Conduct for Procurement: In response to the Government of Canada’s five-year National Strategy to Combat Human Trafficking, PSPC has proposed updates to the Code of Conduct for Procurement to ensure federal procurement supply chains are free from human trafficking and labour exploitation. These updates include new expectations for vendors and suppliers to comply with minimum human rights and labour standards. PSPC is seeking feedback on its proposed updates here. The deadline to submit feedback is February 19, 2021.

What Hasn’t Changed:

  • Continued services 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.
  • Federal government “Return to Work” Guidance: The Treasury Board released a Guidebook for departments on easing of restrictions: Federal worksites. 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.
  • 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 shifts its approach to the Pandemic, contractors should continue to remain alert of the terms and conditions of their contracts, particularly those contracts that were executed for pandemic-related requirements that may no longer be necessary or required.

For further information on federal contracts during COVID, please see the following articles:

Those with an active CITT file who have had their in-person hearings 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 this bulletin).


[1] Treasury Board of Canada Secretariat, “Contracting Policy Notice 2020-4: Updated Response to COVID-19 Temporary Amendments to Contracting Limits” (23 December 2020), online.

[2] Treasury Board of Canada Secretariat, “Contracting Policy” (amended 10 June 2019), online.

                                 

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