At the federal level, government procurement rules generally apply to procurements by federal government departments, corporations incorporated under a federal statute, and corporations that receive the majority of their funding from the federal government and their agents. However, federal government entities that are creatures of statute and that are mandated to compete with the private sector are generally not subject to the government procurement rules.
At the provincial level, government procurement rules similarly have general application to procurements by provincial public bodies. For example, the Québec and Newfoundland and Labrador government procurement statutes generally apply to all public agencies in their respective provinces. Currently, the Ontario Broader Public Sector Procurement Directive only applies to colleges, universities, school boards, hospitals, children's aid societies, community care access corporations, corporations that purchase goods or services for a designated broader public sector organization, and to every publicly funded organization that received public funds of C$10 million or more in the previous fiscal year of the Government of Ontario. It is expected that the Directive will eventually apply to municipalities in Ontario, although there is no set timeline in which this is to occur. The government procurement legislation of Nova Scotia, New Brunswick and Saskatchewan also has broad provincial application.
Common law procurement rules apply generally to all public bodies in Canada. This includes the "Contract A/Contract B" framework described above and the corresponding duties such as the duty to conduct a fair competitive bid process.
The common law "Contract A/Contract B" framework applies to the procurement processes of private companies in circumstances in which the procurement documents constitute a legal tender.
No, co-operations between public bodies and private entities are not generally exempted from public procurement law.
Changes to an existing contract are dealt with in accordance with the rules and procedures that a public body establishes in its procurement bid documentation. Bona fide changes to an existing contract are generally permitted where the contracting parties mutually agree.
Public bodies typically impose limitations on a contractor's ability to transfer a public contract. The Canadian International Trade Tribunal ("CITT"), the adjudicative authority for disputes arising from NAFTA, the GPA and other international Canadian bilateral trade agreements, has suggested that it is not opposed to contracts being assumed by a third party.
Public bodies are free to establish framework and central purchasing agreements among themselves so long as the procurement processes conducted through such arrangements comply with the government procurement rules that are applicable to federal and provincial public bodies. This includes complying with all applicable international trade obligations, as well as the duty to conduct a fair competition, the duty to disclose all material evaluation criteria and the duty to reject non-compliant tenders.
Public-private partnerships ("PPPs") are subject to the government procurement rules that are applicable to federal and provincial public bodies. Many levels of government in Canada have imposed rules that require procuring authorities to consider utilizing PPPs for a proposed project which meets or exceeds certain monetary thresholds.
Concession contracts are subject to the general government procurement rules and the terms outlined in the public body's bid call document.
Canada's Competition Act is generally intended to maintain and encourage competition. The statute focuses on two types of practices: (i) those subject to prosecution under criminal law, including practices such as bid rigging, conspiracies to lessen competition, price maintenance and refusal to supply, price-discrimination, and predatory pricing; and (ii) those subject to review by the Competition Tribunal (such as mergers, abuse of dominant position, tied-selling, refusal to deal, exclusive dealing, market restriction and delivered pricing).