Procurement Ombudsman Regulations (SOR/2008-143)

Regulations are current to 2016-06-21 and last amended on 2008-05-05. Previous Versions

Procurement Ombudsman Regulations

SOR/2008-143

DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES ACT

Registration 2008-05-01

Procurement Ombudsman Regulations

P.C. 2008-831 2008-05-01

Her Excellency the Governor General in Council, on the recommendation of the Minister of Public Works and Government Services, pursuant to section 23.1Footnote a of the Department of Public Works and Government Services ActFootnote b, hereby makes the annexed Procurement Ombudsman Regulations.

Interpretation

 The following definitions apply in these Regulations.

Act

Act means the Department of Public Works and Government Services Act. (Loi)

contracting department

contracting department means the department that awards the contract to which a complaint relates. (ministère contractant)

working day

working day means a day that is not a Saturday or a holiday. (jour ouvrable)

Application

 These Regulations apply

  • (a) with 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;

  • (b) 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; and

  • (c) with 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 Ombudsman

Exception

 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:

  • (a) the Canadian Security Intelligence Service; and

  • (b) the staff of the Senate and the House of Commons.

Review of Departmental Practices for Acquiring Materiel and Services

Review

  •  (1) 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:

    • (a) 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;

    • (b) consistency with the Financial Administration Act and regulations made under it;

    • (c) the resources that would be required of that department to respond to the review;

    • (d) the observations or findings of any previous audits or assessments; and

    • (e) the time that has elapsed since his or her previous review of the practices of that department.

  • (2) 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 shall

  • (a) take into consideration the following factors:

    • (i) 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,

    • (ii) consistency with the Financial Administration Act and regulations made under it,

    • (iii) the seriousness of any inconsistency with the principles of fairness, openness and transparency, and

    • (iv) the potential impact that the recommendations could have on the government’s operations or resources; and

  • (b) provide 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.

  •  (1) 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.

  • (2) 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 Act

Filing of a Complaint Under Paragraph 22.1(3)(b) of the Act

  •  (1) A complaint under paragraph 22.1(3)(b) of the Act shall be filed in writing with the Procurement Ombudsman

    • (a) within 30 working days after public notice of the award of contract to which the complaint relates; or

    • (b) if 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.

  • (2) 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.

  • (3) 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.

  • (4) The complaint is filed when the following information and documents are submitted to the Procurement Ombudsman:

    • (a) the name and address of the complainant;

    • (b) 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;

    • (c) 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;

    • (d) information and documents establishing that the complainant meets the requirement set out in subsection 22.2(1) of the Act;

    • (e) a clear and detailed statement setting out the facts and grounds on which the complaint is based;

    • (f) 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; and

    • (g) upon request of the Procurement Ombudsman for the purpose of section 13,

      • (i) 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, and

      • (ii) the 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.

  •  (1) The Procurement Ombudsman shall review a complaint referred to in subsection 7(1), if

    • (a) the 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;

    • (b) the requirements set out in subsection 22.2(1) of the Act and section 7 have been met;

    • (c) 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; and

    • (d) there are reasonable grounds to believe that the contract was not awarded in accordance with regulations made under the Financial Administration Act.

  • (2) 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, if

  • (a) the complainant withdraws the complaint;

  • (b) one or more of the requirements set out in section 7 or 9 have not been met;

  • (c) the award of contract has been cancelled; or

  • (d) the Procurement Ombudsman determines that the complaint is frivolous or vexatious.

 
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