Conseils d'experts en économie

1. Advance Contract Award Notice (ACAN)
   An ACAN is a public notice indicating to the supplier community that a department or agency intends to award a contract for goods, services or construction to a pre-identified supplier, thereby allowing other suppliers to signal their interest in bidding, by submitting a statement of capabilities. If no supplier submits a statement of capabilities that meets the requirements set out in the ACAN, on or before the closing date stated in the ACAN, the contracting officer may then proceed with the award to the pre-identified supplier.

1. Definition of the requirement
   

The Specific Claims Branch (SCB), Indigenous and Northern Affairs Canada (INAC), deals with all Specific Claims submitted by First Nations in Canada. The Negotiations Directorate of the SCB is responsible for the negotiation of Specific Claims submitted and accepted (in part or in whole) for negotiation pursuant to Canada’s Specific Claims Policy. Specific Claims arise from Canada’s alleged breach or non-fulfilment of lawful obligations found in treaties, agreements or statutes (including the Indian Act). All negotiations are conducted on a “without prejudice” basis, and compensation for First Nations is based on legal principles. A general principle of compensation in many negotiations is attempting to put the claimant First Nation in the financial position it would have been in had the breach of lawful obligation not occurred. In some claims, compensation includes “Loss of Use”.

Negotiations Central Branch (NCB) assesses “Special Claims” for negotiations which, if accepted, can be negotiated by either NCB or Negotiations East Branch (NEB) or Negotiations West Branch, depending on the geographic situs of the claim or claimant Indigenous group. Special Claims provide flexibility for the government in dealing with claims submitted by Aboriginal groups that do not fit within the parameters of the existing comprehensive or specific claims policies and are not being considered under any other mechanism (i.e. Courts). To be considered for review as a special claim, a claim must involve important, unresolved issues that affect the relationship of an Aboriginal group with the federal Crown. The special claims process is not intended to replace the normal development of policies and programs that guide the Crown's relationship with Aboriginal people. Special Claims often have compensatory elements similar to claims in Specific Claims negotiations but may not arise from a breach of treaty or breaches of legislation, or are such that, for some other reason, they do not meet the Specific Claims Policy but are nonetheless claims that Canada wishes to settle. In some claims, Loss of Use is a compensatory element.

There may be circumstances where either NCB or Litigation Management and Resolution Branch (LMRB) – the latter through Justice Canada litigators – wish to negotiate out-of-court settlements (OCS). An OCS can occur where an Indigenous group has elected not to pursue either the Specific Claims or Special Claims routes, and the compensatory elements can often mirror entitlements in either of these two. Loss of Use is a compensatory element in some OCS, just as it is in a Specific Claim or a Special Claim.

Whenever Loss of Use is at issue – be it in a Specific Claim, a Special Claim or an OCS – similar evidence or similar expert advice in the negotiations are needed. Ideally, loss of use studies, which measure the economic loss a First Nation has suffered due to the breach of lawful/legal obligations, are conducted to support negotiations for compensation. However, there are situations in which loss of use studies are not practical, or will not yield reliable results. Usually this is due to insufficient source data (such as in claims arising from the far distant past) or situations in which the actual history has been significantly altered by the breach of lawful obligation itself or other factors (such as in claims where development has occurred on improperly surrendered land that would not have occurred had the land remained reserve land). Other circumstances may arise in which loss of use studies are not acceptable.

In these circumstances, the Branch handling the particular negotiations may require contracting expertise to advise Canada’s negotiating team on the use of economic models which will approximate reasonable loss of use due to the breach of lawful obligation. Typically, these models will take the historic value of a given asset (for example a treaty promise of a piece of land) and will develop an economic model based on reasonable economic assumptions and evidence, to determine a reasonable return for this asset, had it remained in the care and control of the First Nation.

The contractor will be responsible for:

• Developing appropriate models to approximate reasonable loss of use due to the breach of the lawful obligation;
• Developing economic/financial/business models to approximate reasonable present day value of historically valued Indian land, money or assets involved in the breach of lawful obligation(s);
• Liaising with experts and consultants representing First Nations in the negotiation of specific claims settlements;
• Reviewing and analyzing situations arising from historical breaches of lawful obligations;
• Reviewing submissions made on loss of use and compensation by First Nations or other parties;
• Participating in meetings with federal departments and agencies, provincial governments and First Nations;
• Participating in negotiation sessions to explain proposed economic/ financial/business models;
• Providing expert economic/financial/business/investment advice to Canada’s negotiating teams;
• Serving as an Expert Witness (as required) for the Specific Claims Tribunal;
• Developing new economic models based on Tribunal decisions (as required);
• Preparing reports for departmental representatives, as requested;
• Ensuring full documentation of work for the sake of corporate memory and knowledge transferability once contract is completed.
• Mentoring for the purpose of knowledge transferability.

1. Criteria for assessment of the Statement of Capabilities (Minimum Essential Requirements)

Any interested supplier must demonstrate by way of a statement of capabilities that it meets the following requirements:

Experience:

• 10 or more years as an economic expert in negotiations advising a federal negotiating team;
• Experience in the development and application of economic models to assist in the assessment of compensation in for federal negotiating teams;
• Experience attending negotiation meetings and explaining to the negotiation parties the model(s) developed;
• Experience reviewing submissions made by First Nations or other parties;
• Experience preparing and submitting economic modeling and assessment reports to federal departmental representatives;
• Experience serving as an expert witness in court proceedings.

• Knowledge and understanding of:

• Economic Theory and Practice
• Finance Theory and Practice
• Statistics
• Economic/Business Modeling
• Specific Claims Policy and compensation criteria under the policy
• Canada’s Special Claims process and OCS practices
• Canada’s use of the Proxy Model for loss of use compensation

• Academic qualifications

• Ph.D from an accredited university in economics
• Minimum of 10 years research and writing experience in the field(s) of loss of economic use and/or present valuation (determining the present value of land from decades or centuries previous)

1. Applicability of the trade agreement(s) to the procurement

This procurement is subject to the following trade agreements:

• the Agreement on Internal Trade (AIT);
• the North American Free Trade Agreement (NAFTA);
• the Canada Chile Free Trade Agreement (CCFTA);
• the Canada-Colombia Free Trade Agreement (CCOFTA)
• the Canada-Honduras Free Trade Agreement (CHFTA);
• the Canada-Korea Free Trade Agreement (CKFTA);
• the Canada-Panama Free Trade Agreement (CPanFTA);
• the Canada-Peru Free Trade Agreement (CPFTA);
• the World Trade Organization – Agreement on Government Procurement (WTO-AGP).

1. Set-aside under the Procurement Strategy for Aboriginal Business

Not applicable.

1. Comprehensive Land Claims Agreement(s)
   Not applicable.

1. Justification for the Pre-Identified Supplier

The analysis needed to support any of SCB, NCB, NEB, NWB or LMRB, as applicable, negotiations of Specific Claims, Special Claims or OCSs is highly complex and requires expertise of the highest level and respect in the field. Jack Carr has demonstrated being an expert in the field of economic modelling. He has demonstrated experience in providing the services required as an Economic Expert, with extensive knowledge and experience providing all of the following:

1. in-depth knowledge related to the Specific Claims Policy, First Nations, and negotiations in the Specific Claims context;
2. experience serving as an expert witness in numerous court proceedings;
3. economic modelling advice to federal negotiation teams to assess compensation in the context of Specific Claims and OCS, in particular the use of the proxy model for loss of use compensation;
4. credibility as the author of multiple scholarly papers on economic modelling in the field(s) of loss of economic use and present valuation; and,
5. a strong reputation and working relationship with various First Nations communities or other Indigenous groups;

Based on the above combination of knowledge and experience, the proposed supplier is considered uniquely qualified to perform the work.

1. Government Contracts Regulations Exception(s)

The following exception(s) to the Government Contracts Regulations is invoked for this procurement under subsection subsection 6(d) - "only one person is capable of performing the work").

1. Exclusions and/or Limited Tendering Reasons

The following exclusion(s) and/or limited tendering reasons are invoked:

Agreement on Internal Trade (AIT) – Article 506 Paragraph12 (b), where there is an absence of competition for technical reasons and the goods or services can be supplied only by a particular supplier and no alternative or substitute exists.

World Trade Organization - Agreement on Government Procurement (WTO-AGP) – Article XV (15), Paragraph 1 (b), the products or services can be supplied only by a particular supplier and no reasonable alternative or substitute exists.

North American Free Trade Agreement (NAFTA) – Article 1016.2(B) the goods or services can be supplied only by a particular supplier and no reasonable alternative or substitute exists.

1. Ownership of Intellectual Property
   

Ownership of any Foreground Intellectual Property arising out of the proposed contract will vest with Canada, on the grounds that the Foreground consists of material subject to copyright, with the exception of computer software and all documentation pertaining to that software (as per provision 6.5 of the Policy on Title to Intellectual Property Arising Under Crown Procurement Contracts).

1. Period of the proposed contract or delivery date

The proposed contract is for a period of years, from date of contract award to March 31, 2019 with the option to extend the contract by 2 one-year periods.

1. Cost estimate of the proposed contract

The estimated value of the contract, including option(s) to extend, is $2,0000,000.00(including travel and all applicable taxes).

1. Name and address of the pre-identified supplier
   

Jack Carr Inc.

163 Banbury Road

Don Mills ON, M3B 2L7

1. Suppliers' right to submit a statement of capabilities

Suppliers who consider themselves fully qualified and available to provide the goods, services described in the ACAN may submit a statement of capabilities in writing to the contact person identified in this notice on or before the closing date of this notice. The statement of capabilities must clearly demonstrate how the supplier meets the advertised requirements.

1. Closing date for a submission of a statement of capabilities
   The closing date and time for accepting statements of capabilities is August 12, 2016 at 14h00.

1. Inquiries and submission of statements of capabilities

Inquiries and statements of capabilities are to be directed to:
Céline Viner

10 Wellington, Gatineau, QC, K1A 0H1

Telephone: (819) 994-7304

Facsimile: (819) 953-7721

E-mail: celine.viner@aandc-aadnc.gc.ca