Procurement Review Board Regulations (SOR/89-41)

Short Title

1 These Regulations may be cited as the Procurement Review Board Regulations.

Interpretation

• 2 (1) In these Regulations,

  Act

  Act means Part II of the Canada-United States Free Trade Agreement Implementation Act; (Loi)

  intervenor

  intervenor means a person who is granted leave to intervene in any proceedings before the Board under section 29. (intervenant)

  send

  send, in respect of any document or information, means to transmit by hand or registered mail or by facsimile or other electronic means capable of producing for the recipient, at the destination, a printed copy of the document or information. (envoyer)

• (2) For the purposes of the Act,

  Chairman

  Chairman means the Chairman of the Board; (président)

  member

  member means a member of the Board; (commissaire)

  potential supplier

  potential supplier means an actual or prospective bidder whose direct economic interest has been or would be affected by the award of a contract or the failure to award a contract; (fournisseur potentiel)

  send

  send[Repealed, SOR/90-206, s. 1(E)]

Application

3 These Regulations apply in respect of the procurement relating to a contract referred to in section 15 of the Act.

Prescribed Class of Contracts

4 Subject to section 5, for the purposes of section 15 of the Act, the prescribed class of contracts is the class of contracts for eligible goods as defined by Article 1309 of the Agreement.

Exempt Contracts

• 5 (1) Defence contracts and security-related contracts, other than the contracts for products included for Canada in the coverage of the Agreement by virtue of Annex 1304.3 thereof, are exempt from the operation of the Act and these Regulations.

• (2) In this section, defence contracts and security-related contracts mean contracts relating to or for the procurement of arms, ammunition or war materials or any other thing indispensable to national security or national defence.

Computation of Time

6 In computing a period of time prescribed by these Regulations,

• (a) the day on which the designated period of time begins shall not be counted, but the last day of the period shall be counted unless that day is a Saturday or a Sunday or other holiday observed in the province in which a response or filing of documents is prescribed to be made, in which case the period shall include the next business day;

• (b) where the period of time prescribed or allowed is less than eight days, any intervening Saturday and any intervening Sunday or other holiday shall not be counted; and

• (c) where the period of time prescribed or allowed is eight days or more, any intervening Saturday and any intervening Sunday or other holiday shall be counted unless the last day of the period is a Saturday or a Sunday or other holiday, in which case the last day shall be considered to be the next business day.

PART IAdministration

Membership of the Board

• 7 (1) The Chairman shall be appointed as a full-time member and other members may be appointed as full-time or part-time members.

• (2) A member shall be appointed to hold office during good behaviour for a term not exceeding five years but may be removed at any time for cause.

• (3) A member is eligible to be reappointed as a member in the same or another capacity on the expiration of a first or subsequent term of office.

• (4) A member shall have knowledge and experience related to public sector procurement.

• (5) A member shall be paid such remuneration for the member’s services as may be fixed by the Governor in Council and is entitled to be paid reasonable travel and living allowances while absent from the member’s ordinary place of residence in the course of carrying out the member’s duties under the Act and these Regulations.

• (6) Subject to subsection (7), a person who has ceased to be a member may, with the authorization of the Chairman, and where the person was the Chairman and the sole member, with the authorization of the Minister, take part in the disposition of any complaint in which that person became engaged while the person was a member, and a person so authorized shall, for that purpose, be considered to be a member.

• (7) No person who has ceased to be a member shall, after the expiration of 120 days after the person ceased to be a member, take part in the disposition of any complaint pursuant to the authorization of the Chairman or the Minister referred to in subsection (6).

• (8) Where a member or former member who has taken part in the disposition of a complaint is unable to continue to do so by virtue of subsection (7) or is unable or unwilling to do so for any other reason, the remaining members who took part in the disposition of that complaint may, with the authorization of the Chairman, make a determination on the complaint.

Absence, Incapacity or Vacancy

• 8 (1) In the event of the absence or incapacity of a member, other than the Chairman, the Governor in Council may appoint a person to act as a substitute member for such period of time and on such other terms and conditions as the Governor in Council may provide.

• (2) The Minister shall designate another member to act as Chairman during the absence or incapacity of the Chairman or during the vacancy of the Chairman’s position, and that member, while acting as Chairman, shall have all the powers and perform all the duties and functions of the Chairman.

Duties and Functions of the Chairman

9 The Chairman is the chief executive officer of the Board and has supervision over and direction of the work of the Board, including

• (a) the allocation of work among the members;

• (b) the assignment of members to sit at meetings of the Board and to preside thereat;

• (c) the fixing of a quorum for a meeting of the Board; and

• (d) the management of the internal affairs and the staff of the Board.

Conflict of Interest

• 10 (1) A member shall be considered to have a conflict of interest where the member is not in compliance with the Conflict of Interest and Post-Employment Code for the Public Service (Treasury Board, October 1985).

• (2) No member who has a conflict of interest shall participate in any work of the Board until the conflict of interest is resolved.

11 No member shall use membership on the Board to influence or seek to influence the decision of another person in order to further the private interests of that member.

12 The Minister may issue guidelines to members concerning the nature of the interests that are inconsistent with the proper performance of their duties and functions in relation to matters before the Board.

Head Office

• 13 (1) The head office of the Board shall be located in the National Capital Region as described in the schedule to the National Capital Act.

• (2) The Board may sit at such times and at such places in Canada as the Chairman considers necessary for the proper performance of its duties and functions.

Rules of the Board

14 The Board may, with the approval of the Governor in Council, make rules not inconsistent with the Act, these Regulations or the Agreement governing the conduct of the work of the Board and the management of its internal affairs.

Staff of the Board

• 15 (1) There shall be a Secretary of the Board who shall be appointed in accordance with the Public Service Employment Act.

• (2) In the event of the absence or incapacity of the Secretary, or if the office of Secretary is vacant, the Chairman may authorize any officer or employee of the Board to act as temporary Secretary.

• (3) Such other officers and employees as are necessary for the proper conduct of the work of the Board shall be appointed in accordance with the Public Service Employment Act.

Application of Public Service Superannuation Act

• 16 (1) It shall be a condition of appointment of a full-time member that the member be deemed to be a person employed in the Public Service for the purposes of the Public Service Superannuation Act.

• (2) It shall be a condition of appointment of a part-time member, or substitute member, that the member be deemed to be a person employed in the Public Service for the purposes of the Public Service Superannuation Act unless the Governor in Council provides that the member is not to be so employed for those purposes.

Advisors

17 The Board may appoint and, subject to the approval of the Treasury Board, fix the remuneration of persons having technical or special knowledge to assist the Board in any matter in an advisory capacity.

Secondment

18 The Board may request any department or agency of the Government of Canada to second to the Board, for specified periods, such officers or employees of the department or agency as are necessary for the proper conduct of the work of the Board.

Mandate of Board

19 The powers, duties and functions of the Board are to

• (a) receive complaints and make determinations and conduct investigations in relation thereto; and

• (b) make recommendations in writing to a governmental institution respecting any aspect of its procurement.

PART IIPractice and Procedure Before the Board

Informal Proceedings

• 20 (1) All proceedings before the Board shall be dealt with as informally and expeditiously as the circumstances and considerations of fairness permit.

• (2) The Board shall not grant an extension of any time limit referred to in this Part except in exceptional circumstances.

Filing a Complaint

• 21 (1) A complaint that is filed with the Board shall

  • (a) be in writing and be addressed to the Board;

  • (b) set out the name, address and telephone number of the complainant;

  • (c) include the original complaint signed by the complainant or the complainant’s representative, and at least one copy;

  • (d) identify the governmental institution responsible for the procurement that is the subject of the complaint, the solicitation and contract numbers and, if available, the name and telephone number of the contracting officer;

  • (e) include copies of all relevant documents;

  • (f) be concise and logically arranged and contain a clear and detailed statement of the substantive and factual grounds of the complaint;

  • (g) request that the Board make a determination on the complaint; and

  • (h) state the form of relief requested.

• (2) Where the Board receives a complaint that does not comply with subsection (1), the Board shall send a notice to the complainant specifying the deficiencies.

• (3) Forthwith on the filing of a complaint or of information submitted to correct any deficiencies referred to in subsection (2), the Board shall send a notice of receipt of the complaint to the complainant.

• (4) A complaint shall be considered to be filed

  • (a) in the case of a complaint that complies with subsection (1), on the day it is received by the Board; and

  • (b) in the case of a complaint that does not comply with subsection (1), on the day the information is received by the Board to correct the deficiencies specified in the notice referred to in subsection (2).

22 No formal briefs or other technical forms of pleading or motion are required for a complaint.

Time Limit for Filing a Complaint

• 23 (1) Where the basis of a complaint is known or should reasonably have been known prior to bid opening or the closing date for receipt of bids, the complaint shall be filed prior to bid opening or the closing date for receipt of bids, as the case may be, but not later than 10 days after the basis of the complaint is known or should reasonably have been known.

• (2) In any case other than those referred to in subsection (1), a complaint shall be filed not later than 10 days after the basis of the complaint is known or should reasonably have been known, whichever is earlier.

• (3) Where a complaint has been filed initially with the government institution, any subsequent complaint filed with the Board within 10 days after actual or constructive knowledge of the denial of relief by the governmental institution shall be considered by the Board where the initial complaint to the governmental institution was filed within the time limits set out in subsection (1) or (2) or within such shorter time limits as may be required by the governmental institution in respect of that initial complaint.

• (4) The Board, where good cause is shown or where it determines that a complaint raises issues significant to the procurement system, may consider any complaint that is not filed within the time limits set out in this section.

Transmission of Complaint

• 24 (1) Subject to subsection (2), the Board shall, within one day after the filing of a complaint, send to the individual designated in the solicitation by the governmental institution to receive complaints in respect of the procurement

  • (a) a copy of the complaint;

  • (b) a copy of every document filed with the complaint except any document containing confidential evidence or information referred to in subsection 26(3); and

  • (c) where any documents containing confidential evidence or information referred to in subsection 26(3) are withheld, a list of those documents.

• (2) Where no individual is designated in the solicitation by the governmental institution to receive complaints in respect of the procurement, the Board shall send the material referred to in subsection (1) to the Deputy Minister or head of the governmental institution.

Exchange of Information

• 25 (1) On receipt of a copy of the complaint referred to in section 24, the governmental institution shall immediately inform the Board, and confirm in writing, whether the contract that is the subject of the complaint has been awarded and, where the contract has been awarded, provide to the Board the name and address of the contractor and the name and address of the representative of the contractor, if any.

• (2) The Board shall, immediately after receiving the information referred to in subsection (1), send a copy of the complaint to the contractor or the representative of the contractor.

• (3) Subject to subsection 26(3), a copy of every communication to the Board from the contractor or the representative of the contractor referred to in subsection (2) shall forthwith after receipt be sent by the Board to the governmental institution and the complainant.

Confidentiality

• 26 (1) Subject to subsection (3), material submitted to the Board by a complainant shall not be withheld from any intervenor or from any governmental institution that may be involved in the complaint.

• (2) Where the complainant considers that the complaint contains information that should be withheld, the complainant shall affix a statement so advising to the front page of the complaint submission and shall identify the information to be withheld and set out the reasons for withholding the information.

• (3) Where evidence or information that is by its nature confidential is given or elicited in the course of any proceedings before the Board, the evidence or information shall not knowingly be disclosed by any person in any manner that is calculated or likely to make it available for the use of any business competitor of any person to whose business or affairs the evidence or information relates.

Postponement of Award Order

• 27 (1) Where the Board has sent a copy of a complaint to a governmental institution pursuant to section 24 and the Board decides to order the governmental institution to postpone awarding a contract pursuant to paragraph 16(1)(b) of the Act, the Board shall, before making such an order, send a notice informing the governmental institution of its intention to make such an order.

• (2) For the purposes of subsection 16(2) of the Act, the prescribed time for the certification in writing by the governmental institution to the Board is two days after the day on which the notice referred to in subsection (1) is sent by the Board.