Day 1: Wednesday, January 27, 2010
8:00 Registration Opens and Coffee Served
8:30 Opening Remarks from the Co-Chairs
Helmut K. Johannsen
Partner
Fasken Martineau DuMoulin LLP
Judy Wilson
Partner
Blake, Cassels & Graydon 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
Christianne Laizner
Executive Director and General Counsel, Legal Services
Canadian International Development Agency
Gerry Stobo
Partner
Borden Ladner Gervais LLP
Reagan Walker
General Counsel
Canadian International Trade Tribunal
- Understanding the impact of developments and trends in public procurement case law across Canada to public procurement at all levels of government and the MASH sector
- 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 of the cases 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 in the use of procurement structures to which Contract A does not apply
- 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
10:15 PART II: Keeping in Compliance with the Trade Agreements on Public Procurement: Evaluating Key Impacts
Trevor Bergen
Manager, Trade Development
Service Alberta
- Identifying and understanding the implications of the latest developments in TILMA, the AIT, and other trade-related issues
- Comparing TILMA and the AIT: Where are the convergences? Differences?
- Determining key impacts of TILMA on public procurement:
- Expected results of the TILMA
- Impact on engagement of consultants: Can some weight be given to consultants with prior expertise and experience?
- Impact of TILMA on Alberta’s MASH sector; associated support from Service Alberta
- Understanding the varying thresholds; best practices to ensure compliance; identifying exceptions
- Identifying the effects of non-compliance: Examining TILMA’s bid-protest mechanism and financial penalties
- Are changes to the AIT likely as a result of TILMA? What is the likely impact for buyers?
- How are the requirements of TILMA and other major trade agreements being communicated to consultants and suppliers?
- Strategies to ensure early awareness and understanding to minimize disputes and challenges
11:15 Networking and Refreshment Break
11:30 Understanding PWGSC Perspectives on Issues Affecting Federal Public Procurement
Ellen Stensholt
Senior General Counsel
Public Works and Government Services Canada, Legal Services Branch
- Understanding the respective roles of PWGSC and Treasury Board Secretariat in federal government procurement: Who does what?
- Understanding the role of PWGSC vs. the role of the client department regarding authority
- Determining how to maximize efficiencies at the departmental level through centralization of standing offers
- 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
12:15 Networking Luncheon for Delegates and Speakers
1:45 Effectively Managing Bonding and Insurance Coverage Risks
Steven D. Ness
President
Surety Association of Canada
William Forsyth
Senior Vice President
Marsh Canada Limited
- What do the various levels of government and the MASH sector typically ask for by way of bonding and insurance? For which types of projects are bonding and insurance usually seen?
- Understanding the impact of current market conditions on the ability of companies to obtain insurance and bonding
- Addressing the risks of selecting a bidder that has no bonding or insurance coverage
- Dealing with vendor non-compliance with bid security requirements
- Minimizing the risk of and managing vendor defaults
- Examining how the size of a project can affect your ability to obtain bonding and insurance coverage
- Key considerations for bonding related to P3 and construction management projects
2:45 Ensuring Fairness and Transparency in the Procurement Process
A. Brian Oliphant
Barrister and Solicitor
The City of Calgary Law Department
Gerry Stobo
Partner
Borden Ladner Gervais 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?
3:45 Networking and Refreshment Break
4:00 Identifying Emerging Issues, Latest Developments and Tools to Integrate E-Procurement
George S. Takach
Partner
McCarthy Tétrault LLP
Ellen Stensholt
Senior General Counsel
Public Works and Government Services Canada, Legal Services Branch
- Overcoming provincial and MASH sector administrative hurdles to e-procurement
- Considering the administrative and legal barriers to federal e-procurement initiatives
- Revealing the latest tools and best practices for e-procurement and understanding how they will streamline the procurement process
- Comparing the state of integration of e-procurement within the public sector: Who is doing what?
- 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
5:00 Conference Adjourns
Day 2: Thursday, January 28, 2010
8:00 Coffee Served
8:45 Opening Remarks from the Co-Chairs
9:00 Identifying Risks And Managing Procurement Challenges And Disputes
Part I: Identifying Key Risks that have Emerged Through Case-Law
Judy Wilson
Partner
Blake, Cassels & Graydon LLP
- Step-by-step analysis of key issues determined by case law; when and why they arise
- Applying lessons learned to the procurement process
9:45 Part II: Identifying and Assessing Key Risks from the Pre-Tender Stage
Helmut K. Johannsen
Partner
Fasken Martineau DuMoulin LLP
- Ensuring that the procurement process is the most suitable one for each project delivery model
- Identifying key market challenges: Supplier base; fluctuating costs and currencies; cross-border movement of goods and services
- Clarifying the differences between RFPs and RFTs and the risks involved in misusing RFPs
- 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
- 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
10:45 Networking and Refreshment Break
11:00 Part III: Best Practices in Managing and Resolving Procurement Challenges and Disputes
Judy Wilson
Partner
Blake, Cassels & Graydon LLP
Milos Barutciski
Partner
Bennett Jones LLP
Graham McLeod
Vice President - Project Legal Services, Energy and Infrastructure
Infrastructure Ontario
- 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
12:30 Networking Luncheon for Delegates and Speakers
1:45 Green and Socially Responsible Procurement: Balancing Policy with Implementation Capacity
Larry Berglund
Principal, Presentations Plus
(formerly Director, Supply Management, University of British Columbia)
Jim Nicholson
A/Strategic Procurement Coordinator, Finance & Supply
The City of Calgary
- 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, the City of Vancouver, and the University of British Columbia
- Translating green policies into contracts: Examples of good and bad standard clauses; top tips for developing evaluation criteria around green procurement
3:00 Exploring Opportunities for Cooperative Buying in the Public Sector
Corey Imhoff
Program Manager
Canadian Communities
- Basic principles for bulk buying with multiple legal entities
- How do you form a contract when multiple entities are buying from a single supplier?
- Use of cooperative buying in the MASH sector
- Considerations and best practices for setting up a cooperative buying structure
3:45 Closing Remarks from the Co-Chairs
Conference Concludes
Conference Details
