Public Procurement Law: The Rules in Practice

Core Principles and Governing Rules: An Overview

• Detailed description of core procurement principles
• The differences between public and private procurement – the key overriding considerations
• Sources of the governing rules

Overview of Canadian Procurement Law: Sources of Law

• Contract law/Administrative law/Tort law
• Contract A and non‑binding formats
• Applicable legislation and directives – a cross country check‑up

Trade Agreement Obligations

• Canadian Free Trade Agreement (CFTA)
• Canada – European Union Comprehensive Economic and Trade Agreement (CETA)
• Other International and regional Trade Agreements

Interactive Workshop: Procurement Rule ‘Mashup’

Test your knowledge in this engaging session. From a list of rules, you will work with colleagues and instructors to identify the origin of the rule, geographical jurisdiction and sector application.

Bid Disputes and Legal Challenges

Depending on the nature of the purchaser and what rules apply to the particular procurement, non-compliance may result in:

• Contract law claims
• Judicial review applications
• Bid protest mechanism challenges
• Canadian International Trade Tribunal (CITT) complaints

Common Procurement Perils (and How to Avoid Them!)

• Non-competitive procurements
• Restrictive requirements
• Biased specifications
• Public openings and “unofficial results”
• Non‑compliant bids
• Over‑budget bids
• Conflict of interest and unfair advantage
• Non‑transparent evaluation
• Disqualification of bidders
• Supplier suspension

Interactive Workshop: Sticky Situations

Using sample fact scenarios (circulated in advance) this workshop will have you working through common procurement risks and reinforce tactics for handling bid disputes.

Developing the Procurement Strategy

• Identifying requirements and assessing the market
• Recurring requirements
• Standardization
• Single or multi‑phase project?
• Application of trade agreements
• Direct award, invitational competition or public competition?
• Binding or non‑binding?
• Negotiation?

Interactive Workshop: Scenarios and Strategies

Building upon the knowledge gleaned from the first part of the module, the morning session concludes with small, breakout groups where you will consider various scenarios and develop effective procurement strategies for each scenario.

Preparing the RFx

• Bidder instructions
• Process terms
• Disclosure duties
• Scope of work and pricing tables
• Mandatory requirements
• Evaluation criteria
• Non-biased specifications

Administering the Competitive Process

• Communicating effectively with bidders
• Handling bid irregularities
• Clarification and rectification
• Scoring the rated criteria
• Incorporating active evaluation phases
• Considering references
• Finalizing the contract
• Debriefing unsuccessful bidders – “dos and don’ts”

Strategic Sourcing

• What is strategic sourcing and how does it differ from conventional purchasing?
• Potential benefits and potential pitfalls
• Tips and tools for successfully implementing strategic sourcing in your organization

Managing Contract Performance and Supplier Relations

Partnering with third party suppliers, service providers and other organizations has the potential advantage of lower costs, greater efficiency and better customer service. On the other hand, managing these relationships can at times prove problematical and costly. In this session we look at best practices for managing and improving performance.

Practical Experience with Non-Binding Procurement Processes

In this session, Tharshini Markandaier, Public Sector Procurement Executive, looks at the benefits of non-binding procurement processes. Topics covered include:

• Key features of a non-binding RFx framework
• Complying with public procurement requirements and administrative law
• Transparent, equal and fair disclosure of requirements
• Leveraging increased flexibility
• Enhancing vendor participation
• Managing risk
• Increasing stakeholder engagement

Public Scrutiny, Judicial Inquiries and Audits

The public expects transparency and accountability in respect of the expenditure of public funds. Public purchasers face significant risk of public scrutiny, judicial inquiries and audits when they engage in non-transparent procurement practices, such as:

• Non-competitive procurements
• Repeat awards to entrenched suppliers
• Awarded contracts that significantly/ repeatedly expand in scope and dollar value
• Conflicts of interest
• Political interference
• Backroom deals

The Big Picture

In this session, Program Director Marilyn Brown will look at the importance of viewing procurement decisions with a broad perspective, including:

• Comprehensive recap of core topics covered in days 1‑4
• How to apply the principles in a common‑sense manner
• Tactics and practical solutions to avoid getting “bogged down” in all the rules

Learn from the Experts: Open Mic Forum

For the final session of the program, you will get the chance to learn from our Advisory Board and get your questions answered. Don’t miss this unique opportunity to learn from and engage with these experienced experts. These Q&A sessions are consistently an excellent and valuable learning opportunity.

Panelists
Marilyn Clarke
Partner LXM Law

Mike Pacholok
Deputy City Clerk, Member Services and Program Support, City of Toronto

Rosslyn Young
Chief Legal Officer and General Council, LCBO

Moderator
Marilyn Brown
LXM Law

Exam Overview and Closing Remarks