1. Alberta Public Sector and Procurement
A Conversation on Trade Agreements and Risks Associated with Public Procurement
(and the tools at your disposal)
Presentation to AMSA – March 22, 2017

2. Today’s Agenda: Trade Agreements Which ones do we follow? Obligations
Upcoming agreements
Tools for Public Sector Entities

3. Trade Agreements… What Do They Mean for Public Entities?

4. Trade agreements assist
Public Procurement teams in understanding how Government of Alberta public entities must do business!
They provide guidance on how the governments must buy goods, services and construction
They ensure other governments are following the same rules
They show our vendors how we are procuring in fair, open and transparent manners.
They provide a dispute resolution mechanism and bid protest mechanism!

5. How many Trade Agreements apply to the MASH Sector right now?1 2 3 4
In order of signing…
AIT – 1995; MASH 1999
TILMA – 2007; MASH 2009
NWPTA – built on the previous TILMA – 2010; AB MASH…immediate.

6. Agreement on Internal Trade (AIT)
National agreement between Canada, all provinces and territories (except Nunavut)
Came into effect on July 1, 1995
Reduces & eliminates barriers to the movement of goods, services, labour and investment
Extended to MASH sector entities in 1999
Applies to all public sector entities at different threshold levels

7. Government of Alberta AIT Thresholds:
Goods
Services
Construc-tion
GoA
$25,000
$100,000
ABCs
MASH
$250,000
GoA and MASH entities have thresholds at different levels based on buying power

8. AIT is being updated! Say “HI” to the Canadian Free Trade Agreement
Many of the same measures are included in the updated version. The values are still fair, open, and non-discriminatory competition.
New measures bring the obligations in line with our international agreements (WTO GPA and CETA) – one rule for all agreements
Entry into force: July 1, 2017 (on Canada’s 150th Birthday)
Same measures: fair, open, non-discriminatory
New measures:
VALUATION – include all taxes, fees, extras, AND optional renewals!!
POSTING – like the upcoming CETA, this agreement calls for a single point of access to post all opportunities. Alberta has chosen to opt out of this until they know more about the tool to be used.
NEGOTIATION – there is currently an area which describes when an entity may wish to use negotiation; before this no trade agreement included Negotiation.
PUBLICATION OF AWARD INFORMATION – you must now publish all of your award information AND ensure you meet the prescriptive list of things that must be included in the award notice.
REPORTING – there will now be an expectation for parties to submit annual reports on the number and aggregate value of its covered procurement contract awards broken down by entity type and commodity.
THE THRESHOLDS WILL NOW BE ADJUSTED EVERY TWO YEARS TO ACCOUNT FOR INFLATION ADJUSTMENTS

9. AIT versus CFTA: Differences in measures
VALUATION
Entities will include all taxes, fees, extras,
and optional renewal years
PUBLICATION OF AWARD INFORMATION
Entities must publish award information for openly competed opportunities within 72 days of award
REPORTING
Entities will now be expected to submit annual procurement reports
THRESHOLD ADJUSTMENT
The CFTA will be adjusted every two years to account for inflation
Same measures: fair, open, non-discriminatory
New measures:
VALUATION – include all taxes, fees, extras, AND optional renewals!!
POSTING – like the upcoming CETA, this agreement calls for a single point of access to post all opportunities. Alberta has chosen to opt out of this until they know more about the tool to be used.
NEGOTIATION – there is currently an area which describes when an entity may wish to use negotiation; before this no trade agreement included Negotiation.
PUBLICATION OF AWARD INFORMATION – you must now publish all of your award information AND ensure you meet the prescriptive list of things that must be included in the award notice.
REPORTING – there will now be an expectation for parties to submit annual reports on the number and aggregate value of its covered procurement contract awards broken down by entity type and commodity.
THE THRESHOLDS WILL NOW BE ADJUSTED EVERY TWO YEARS TO ACCOUNT FOR INFLATION ADJUSTMENTS

10. Trade, Investment & Labour Mobility Agreement (TILMA)
Agreement between AB and BC
(Complements AIT, has lower thresholds and less exceptions)
Applies to the Governments of Alberta & BC, their Agencies, Boards and Commissions and MASH Sector (municipalities, academic institutions, school boards and regional health authority)
Came into effect in May, 2007
Came into effect for MASH Sector in 2009
NWPTA starts where the previous agreement (TILMA) left off
Health authorities – one for AB, several for BC

11. New West Partnership Trade Agreement (NWPTA)
Agreement between AB, SK, BC, and MB
(Starts where previous agreement, TILMA, left off)
Applies to the Governments of Alberta, BC, Saskatchewan & Manitoba, as well as their Agencies, Boards and Commissions and MASH Sector (municipalities, academic institutions, school boards and regional health authority)
Came into effect on July 1, 2010
NWPTA starts where the previous agreement (TILMA) left off
Health authorities – one for AB, several for BC, SASK and MB

12. Alberta Public Entities openly tender at the TILMA/NWPTA thresholds
Goods
Services
Construc-tion
GoA
$10,000
$75,000
$100,000
ABCs
MASH
$200,000
When it is at, or above, the TILMA/NWPTA threshold, the tender MUST be advertised on our electronic tendering system, the Alberta Purchasing Connection (or APC). We’ll touch on this system in a few slides.
Any and all tenders at or above the threshold is advertised openly on APC.
Under threshold tenders are handled directly by the ministry. They can be, and have been, advertised on the APC.
Alberta Public Entities openly tender
at the TILMA/NWPTA thresholds

13. UPCOMING: Canada/European Union Comprehensive Economic and Trade Agreement (CETA)!
CETA – includes 28 member states covering most of Europe and Canada. Agreement “in principle” was reached in October, They are still negotiating fine details. After negotiations complete, the text will still need to be translated, go through legal review and be and approved by all countries involved. Then the agreement will be signed and ratified by respective parliaments. We expect there will also be an implementation period.
Countries: Canada, Armenia, European Union: (Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxemburg, the Netherlands, Portugal, Spain, Sweden, the United Kingdom (for now), Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovak Republic, Slovenia, Bulgaria, Romania, and Croatia), Hong Kong – China, Iceland, Israel, Japan, Republic of Korea, Liechtenstein, Republic of Moldova, Montenegro, Netherlands with respect to Aruba, New Zealand, Norway, Singapore, Switzerland, Chinese Taipei, Ukraine, United States
Built on the same principles of our other trade agreements: Non-Discrimination; Fairness; Transparent
Non-Discrimination
CETA’s provisions require the EU to accord Canadian suppliers the same treatment it accords to domestic suppliers. This provides assurance that Canadian suppliers will be able to compete on an equal footing as their EU counterparts on government procurement opportunities covered under CETA.
Fairness
CETA’s provisions provide Canadian suppliers the confidence that the procurement process will be conducted in an impartial manner. For example, suppliers can challenge procurement decisions that they believe run contrary to CETA’s procurement obligations under a domestic review mechanism. It will be similar the NWPTA Bid Protest Mechanism.
Transparency
CETA’s rules on transparency ensure that potential suppliers are provided with the necessary information about procurement opportunities in order to submit a responsive bid. For example, the requirement to post award information so that unsuccessful bidders will be able to assess the fairness of the process and better position themselves for future procurement opportunities.
NEW TO MASH AND CROWNS…
VALUATION – you will now have to include the total value of the procurement including premiums, fees, commissions, interest and tax, and options to renew when estimating the value of the procurement. The AIT and TILMA/NWPTA ask that you only include the original term of the contract.
TIME PERIODS – in the past you had to keep an opportunity open long enough to provide sufficient time for a supplier to find the opportunity, prepare a response and submit a response. The CETA provides defined rules on how long your CETA-qualified opportunities must be posted for:
A procuring entity shall establish that the final date for the submission of tenders shall not be less than 40 days from the date on which the notice of intended procurement is published.
A procuring entity may reduce the time-period for tendering established in accordance with paragraph 3 by five days for each one of the following circumstances:
the notice of intended procurement is published by electronic means;
all the tender documentation is made available by electronic means from the date of the publication of the notice of intended procurement; and
the entity accepts tenders by electronic means.
If a procuring entity purchases commercial (off the shelf) goods or services, or any combination thereof, it may reduce the time-period for tendering established to not less than 13 days, provided that it publishes by electronic means, at the same time, both the notice of intended procurement and the tender documentation. In addition, if the entity accepts tenders for commercial goods or services by electronic means, it may reduce the time-period established to not less than 10 days.
AWARD NOTIFICATION – Whereas publishing Award Information has been required through AIT since 2013, the CETA not only requires an entity to post award information but it is also very prescriptive on how it should be done:
Award information posted no later than 72 days after the award period of time. The notice shall include at least the following information:
a description of the goods or services procured;
the name and address of the procuring entity;
the name and address of the successful supplier;
the value of the successful tender or the highest and lowest offers taken into account in the award of the contract;
the date of award; and
the type of procurement method used, and in cases where limited tendering was used in accordance with Article 19.12, a description of the circumstances justifying the use of limited tendering.
REPORTING - Each Party shall collect and report to the Committee on Government Procurement statistics on its contracts covered by this Chapter. Each report shall cover one year and be submitted within two years of the end of the reporting period, and shall contain:
for GoA, ABC, MASH, and Crown Corp procuring entities:
the number and total value of contracts covered by this Chapter awarded by all such entities, broken down by Goods, Services and Construction; and
estimates for the data required under subparagraphs (a), with an explanation of the methodology used to develop the estimates, if it is not feasible to provide the actual data.

14. Alberta Public Entities openly tender at the TILMA/NWPTA thresholds
CETA Thresholds - estimates:
(Will apply to MASH)
Goods
Services
Construc-tion
GoA/ABCs
$355,000
$8.5M
MASH
Crowns
$630,000
THESE ARE ESTIMATES!! The real thresholds will be released when the CETA comes in to affect. The thresholds will be updated every two years; the next update will be January 1, 2018.
Any and all tenders at or above the threshold must be advertised openly on APC.
Under threshold tenders are handled directly by the procuring entity. They can be, and have been, advertised on the APC.
Alberta Public Entities openly tender
at the TILMA/NWPTA thresholds

15. Threshold Comparison A quick reference… WTO/GPA Goods Services
Construction
47 countries including the 28 countries of the European Union
Ministries
604,700
8,500,000
MASH
Not covered
Crown
CETA
28 countries of the European Union
355,000
630,000
AIT/CFTA
10 provinces,
3 territories,
Federal Government
25,000
100,000
100,00
250,000
500,000
5,000,000
NWPTA
Alberta,
British Columbia, Saskatchewan, Manitoba
10,000
75,000
200,000
Crowns
Alberta Public Entities openly tender
at the TILMA/NWPTA thresholds
Any and all tenders at or above the threshold must be advertised openly on APC.
Below-threshold tenders are handled directly by the procuring entity. They can be, and have been, advertised on the APC.

16. Commonalities Between All Agreements
Fair, Open and Transparent measures
Equal treatment for all vendors (Provincial/Territorial, National, and International) in like circumstances
Specify standards and regulations in terms of results, performance or competence
Most exceptions are in all agreements!
Ensure existing, new or amended measures do not restrict or impair trade, investment or labour mobility
Treat BC, Saskatchewan and Manitoba goods, persons, services, investors and investments no less favourably than we treat our own in like circumstances
Ensure that any charges we apply to BC, Saskatchewan and Manitoba goods, persons, services, investors and investments are the same as those we charge our own except where there is an actual cost-of-service differential
Non-conforming measures which are intended to meet a legitimate objective are allowed as long as efforts have been made to minimize the differences in such measures. They must meet the following test:
necessary to achieve a legitimate objective;
not more restrictive than necessary; and
not a disguised barrier

17. Commonalities Between Agreements - 2
AIT, TILMA/NWPTA, WTO GPA and CETA follow the principles of fairness, openness, transparency and non-discrimination.
You must post at or above TILMA/NWPTA thresholds.
You must keep the opportunity open to allow a vendor to find the opportunity, compose a response, and submit it (CETA states for how long).
You must establish an evaluation criteria that cannot be altered once the opportunity has closed; you must apply that criteria fairly to all responses.
You may take into account any number of criteria including, but not limited to: price, quantity, quality, delivery, servicing, capacity of the supplier to meet the requirements…etc.
The CETA will require that tender notices contain the following information
the name and address of the procuring entity and information concerning how relevant documents relating to the procurement can be obtained,
a description of the procurement, including the nature and the quantity of the goods or services to be procured;
for recurring contracts, an estimate, if possible, of the timing of subsequent notices of intended procurement;
a description of any options;
the time-frame for delivery of goods or services or the duration of the contract;
the procurement method that will be used;
the address and the final date for the submission of tenders or requests for participation;
the language or languages in which tenders or requests for participation may be submitted;
a list and brief description of any conditions for participation of suppliers, unless such requirements are included in tender documentation that is made available to all interested suppliers;
if any, the criteria that will be used to select a limited number of qualified suppliers to be invited to tender and any limitation on the number of suppliers that will be permitted to tender; and an indication that the procurement is covered by the GPA.
The CETA will set out minimum posting periods of:
13 days for commercial goods and services where the tender notice and tender documents are published electronically; and
30 days for all other goods and services where the tender notice and tender documents are published electronically.

18. Common Exceptions Between Agreements
The good news…
Nearly all of the exceptions we see in the AIT are also included in the TILMA/NWPTA and CETA!
Exceptions missing in the TILMA/NWPTA:
Doctors; Dentists; Nurses; Vets; Engineers; Accountants; Real Property; Magazine/Newspaper Subscriptions; Original Works of Art
Exceptions missing in the CETA:
Confidentiality

19. Dispute Resolution
AIT - Provides for consultation followed by formal dispute proceedings before a dispute panel if the complaint is unresolved through consultations
TILMA/NWPTA – Same as AIT however may add monetary awards in the case of non-compliance with a panel report
CETA – Also follows the AIT, however Parties are expected to establish a Domestic Review Procedures that meets minimum requirements set out in the CETA

20. Bid Protest Mechanism Currently for NWPTA provinces only.
Timely dispute avoidance provisions
Arbitral process accessible by both governments and persons
Enforceable through monetary penalties

21. Tools for Public Sector Entities

22. Tools for Public Sector Entities
Standing Offer Arrangements
Corporate Purchasing within Service Alberta has developed a wide range of standing offer contracts on behalf of GoA departments.
Access to these contracts is provided on request to MASH sector as “Approved Organizations”.
To obtain access, simply send an to:

23. Tools for Public Sector Entities
Templates Produced by the Government of Alberta
Templates have been created by the Contract Centre of Excellence (CCoE) to give public entities a place to start.
All templates should be vetted by an entity’s legal resources prior to using.

24. Tools for Public Sector Entities
The GoA Procurement Accountability Framework
Detailed description (end to end) of the procurement and contracting process
Identifies mandatory and discretionary aspects of procurement
Based on industry best practices
Suitable for use as a Policy and Procedure manual

25. Tools for Public Sector Entities
Trade Agreement Advisory Services
Trade Development Office, Procurement Services
Education, advisory and interpretive services of the procurement provisions of all trade agreements
Contact:
Chelle Busch at:

26. QUESTIONS??