The Canadian public procurement market is worth more than $200 billion annually. It is also the most litigious in the world. Purchasers face major risks when conducting traditional procurements, and suppliers face the enticing prospect of seeking lost profits for breach of contract if a purchaser violates on of the many byzantine duties that it bears. This situation arises largely because of Canada’s long-standing commitment to a binding RFP format that effectively creates a bidding contract between all compliant bidders and the purchasing entity.
Recent trends have seen an increasing use in flexible “Negotiable RFPs” that attempt to avoid that binding “bidding contract”. By doing so, purchasers have sought to avoid the duties arising out of the binding RFP format, and create space to engage in creative procurement solutions.
In addition to these changes, there has been a rapid expansion of the number of entities subject to special procurement obligations included in Canada’s trade agreements. Specifically, the Comprehensive Economic and Trade Agreement with the European Union, and the inter-provincial Canadian Free Trade Agreement have greatly expanded the scope of what entities are covered by these obligations. Entities such as school boards, municipalities, and hospitals that were previously largely exempt from trade treaty commitments, are now bound by these incredibly stringent standards.
On November 13th and 14th I gave a series of talks to our clients and lawyers from across the country to provide insight into these developments. On the 13th, I stopped in Calgary to provide an introduction to NRFPs and Canada’s treaty obligations. On the 14th, in Vancouver, I discussed some recent developments in NRFP caselaw, and followed that with a much deeper dive into Canada’s trade treaties, and their application to non-traditional public purchasers.