Legal & Business Guide to Public Procurement

Day 1: Wednesday, January 20, 2010

8:00 Registration Opens and Coffee Served

8:30 Opening Remarks from the Co-Chairs

Paul Emanuelli
Managing Director
The Procurement Office

Paul M. Lalonde
Partner
Heenan Blaikie LLP

8:45 Maximizing Compliance with Public Procurement Law by Getting Up-To-Speed with Tercon and the Latest Legal Developments

PART I: Legislative and Case Law Developments

Susan Clarke
Senior Counsel, Department of Justice, Public Works
and Government Services Canada – Legal Services Branch

Paul Emanuelli
Managing Director
The Procurement Office

Reagan Walker
General Counsel
Canadian International Trade Tribunal

• Minimizing public procurement challenges under Canada’s trade agreements by understanding trends and issues in complaints before the CITT:
• Important CITT decisions and their principles: Survey of decisions in 2008 and 2009
• Determining which issues are lending themselves to challenge
• CITT decisions in respect of international and domestic trade agreements
• Learning CITT procedure and the jurisdictional rules: the Northrop Grumman Overseas Corporation case
• Understanding the impact of and applying trends in public procurement case law in Canada
• Reviewing the essential elements of the cases before the Supreme Court of Canada:
• Interpreting key clauses in Tercon, Double N Earthmovers, and Design Services: What are the legal ramifications on tendering and limitation of liability?
• Exploring the application of Tercon outside the construction sector
• Determining how far boilerplate clauses may change in the tendering process
• Evaluating the impact of amendments to the Competition Act on bid-rigging
• Alternatives to Contract A: Exploring developments across the country in the use of procurement structures to which Contract A does not apply

10:15 PART II: Keeping in Compliance with the Trade Agreements on Public Procurement: Evaluating Key Impacts and Comparing Points of Divergence

Paul Emanuelli
Managing Director
The Procurement Office

• Identifying and understanding the implications of the latest developments within the AIT, NAFTA, and WTO Agreements
• Determining and factoring the key impacts of trade agreements into public procurement planning and strategy at the federal and provincial levels of government
• Exploring key impacts of the AIT on the MASH sector
• Determining the state of the AIT: Is it still relevant? How effective is enforcement of the AIT? How should you respond to an event of non-compliance?
• Interpreting Ontario’s supply chain guidelines in view of the AIT: Appropriate steps to minimize and manage non-compliance where there may be interpretative differences
• Determining the latest developments in inter-provincial procurement initiatives: Ontario-Quebec developments; TILMA
• Exploring U.S. President Obama’s “Buy American” strategy and the Canadian Auto Workers “Buy Canadian – Build Communities” campaign in light of trade agreements: How does this impact upon public procurement in Canada?
• Keeping in compliance: Top strategies to navigate the myriad rules of the trade agreements; comparison of main points of divergence and convergence

11:00 Networking and Refreshment Break

11:15 Anticipating and Responding to Key Multijurisdictional Aspects of Procurement

Sylvain Cyr
Director, Acquisition Policy and Process Directorate
Public Works and Government Services Canada

Pierre Delisle, Q.C., Ad. E.
Lawyer
Heenan Blaikie LLP

Lisa Miller
Associate
Arent Fox PLLC, Washington, DC

• Applying contract laws between Ontario and Quebec: Identifying and overcoming principal areas of dispute when using Quebec construction suppliers in Ontario
• Contract challenges between common law and civil law jurisdictions: Comparison of procurement best practices in Ontario and Quebec, and lessons learned
• Comparing differences between U.S. and Canadian federal procurement obligations
• Key U.S. developments: Identifying opportunities to improve Canadian public procurement
• Managing U.S. bidders to Canadian procurement contracts:
• Where are we seeing the greatest degree of non-acceptance of federal governmental standard terms and conditions? In which sectors? Which terms?
• Is negotiation of standard terms possible? Understanding the reasons for resistance and developing strategies to overcome non-acceptance of standard terms with minimum time expenditure
• Steps to resolve disagreements on limitation of liability in the absence of amendments to PWGSC and the Treasury Board Secretariat’s limitation of liability framework
• Strategies to ensure that cross-border suppliers understand Canadian procurement and customs laws and procedures

1:45 Towards Standardization of the Procurement Process: Initiatives and Best Practices

Jim Hadjiyianni
Senior Program Manager – BPS Supply Chain Secretariat, Treasury Board Office
Ontario Ministry of Finance

Eddy Jin
Director, Procurement Services
University of Toronto

Ellen Stensholt
Senior General Counsel
Public Works and Government Services Canada, Legal Services Branch

• Understanding the implications of recent standardization initiatives at PWGSC:
• Plain language drafting
• Standard templates for simple, medium complexity, and high complexity procurements
• Revision of PWGSC’s Standard Acquisition Clauses and Conditions (SACC) Manual
• Getting up-to-speed on standardization within the Ontario government:
• Phases for standardization
• Identifying issues from the adoption of the Code of Ethics and standard policies and procedures rolled out in April 2009
• Update on the development of standard performance metrics
• Best practices and lessons learned for developing and implementing standardization at the federal departmental level, within the provinces, and in the MASH sector
• Developing standardized documents: What kinds of documents should everyone have? How flexible should they be? How often should they be updated? How do you develop internal training systems? Using electronic templates to maximize efficiencies

3:00 Networking and Refreshment Break

3:15 Identifying Emerging Issues, Latest Developments and Tools to Integrate E-Procurement

Patrick Parent
Senior Program Manager, BPS Supply Chain Secretariat
Ontario Ministry of Finance

Ellen Stensholt
Senior General Counsel
Public Works and Government Services Canada, Legal Services Branch

George S. Takach
Partner
McCarthy Tétrault LLP

• Considering administrative and legal barriers to federal e-procurement initiatives
• Overcoming provincial and MASH sector administrative hurdles to e-procurement
• Comparing the state of integration of e-procurement within the public sector
• Examining Ontario’s electronic marketplace for the education sector through the Ontario Education Collaborative Marketplace: Current status, timelines, and anticipated results
• Revealing the latest tools and best practices for e-procurement and understanding how they will streamline procurement
• Assessing legal and emerging issues associated with online bidding and reverse online bidding: Electronic bid receipts; document security; privacy considerations; standards for electronic submissions; applicable law; Contract A formation

4:30 Conference Adjourns

Day 2: Thursday, January 21, 2010

8:00 Coffee Served

8:45 Opening Remarks from the Co-Chairs

9:00 Green and Socially Responsible Procurement: Balancing Policy with Implementation Capacity

Jim Nicholson
A/Strategic Procurement Coordinator
Finance & Supply The City of Calgary

Lou Pagano
Director, Purchasing & Materials, Management Division
The City of Toronto

• Understanding the new ethics of procurement: What is sustainable, ethical and environmental procurement? What are the latest trends and where is Canada going?
• What impact will green procurement initiatives have on the standard procurement process?
• Exploring the relative costs and efficiencies of new green products: Are they always more expensive? What new products and processes are available?
• Relevance of green procurement to procurement of services: Does it make any difference?
• Identifying the state of implementation of green procurement in Canada: What will it take to accelerate uptake of green procurement in Canada?
• How does green and ethical procurement impact vendors? Identifying corporate leaders in corporate social responsibility and environmental sustainability
• Developing sustainable and green procurement policy and governance structures:
• How do you set the parameters? What are the costs involved?
• Best practices to overcome administrative and informational hurdles
• Case Studies: Top tips and lessons learned from the City of Calgary
• Translating green policies into contracts: Examples of good and bad standard clauses; top tips for developing evaluation criteria around green procurement

10:15 Networking and Refreshment Break

10:30 Identifying and Assessing Key Risks from the Pre-Tender Stage

Paul Emanuelli
Managing Director
The Procurement Office

Steven D. Ness
President
Surety Association of Canada

Judy Wilson
Partner
Blake, Cassels & Graydon LLP

• Step-by-step analysis of key risks determined by case law; when and why they arise; applying lessons learned
• Is the procurement process the most suitable one for each project delivery model?
• Identifying key market challenges: Supplier base; fluctuating costs; cross-border movement of goods and services
• Analyzing the legal consequences arising from passing the pre-qualification process
• To what extent and when can specific bidders be prevented from bidding? Top tips for drafting statements of work and RFPs to exclude certain categories of bidders
• Effectively managing bonding and insurance coverage risks at the pre-tender stage:
• What are the risks of selecting a bidder with no bonding or insurance coverage?
• Dealing with vendor non-compliance with bid security requirements
• Identifying, minimizing and managing top issues with submitted tenders: What can you live with? What bids must you avoid?
• Evaluating the extent to which bidders play games to avoid liability and responsibility
• Managing risks associated with bid evaluations: Evaluation methods; ensuring clear justifications; determining what information can be provided to bidders

12:00 Networking Luncheon for Delegates and Speakers

1:30 Clarifying Differences Between RFPs and RFTs: Examining the Risks Involved in Misusing RFPs

Glenn Ackerley
Partner
WeirFoulds LLP

• Identifying main differences between RFPs and RFTs ; risks associated with misusing an RFP
• Examining the document beyond its title: What do courts consider when analyzing RFP disputes?
• Top risks to consider when drafting an RFP; checklist of issues
• To what extent can you amend an RFP before it becomes a tender?

2:30 Best Practices in Managing and Resolving Procurement Challenges and Disputes

Graham McLeod
Vice President – Project Legal Services,
Energy and Infrastructure, Infrastructure Ontario

Judy Wilson
Partner
Blake, Cassels & Graydon LLP

• Best practices in minimizing and managing challenges based on fairness
• Can standard government indemnity clauses be negotiated? When? Comparing views across the public sector; determining what is fair and equitable for both the buyer and supplier
• Top tips for minimizing legal risk from major amendments to contracts post-award
• At what point is a claim in respect of IP rights valid or invalid? How serious are these claims?
• Under what circumstances can a supplier terminate a contract?
• Strategies for managing and resolving contract disputes: Effective use of ADR and mediation

3:30 Networking and Refreshment Break

3:45 Ensuring Fairness and Transparency in the Procurement Process

Paul M. Lalonde
Partner
Heenan Blaikie LLP

• Best practices for ensuring fairness and transparency in the procurement process
• Minimizing challenges through the use of fairness monitors:
• Under what circumstances would you seek an evaluation by a fairness monitor?
• At what point should a fairness monitor be used?
• Pros and cons of using a fairness monitor: Are fairness monitors worth the cost?
• Role of the fairness monitor in large procurement contracts
• Where are fairness monitors being used? Examining the Mytell challenge and other instances of use

4:30 Closing Remarks from the Co-Chairs
Conference Concludes

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