Chapter 9: Special procurements

9.1 Special procurements - Introduction

Effective date: 2015-09-24

1. This chapter presents information related to procurement that is unique or specific to a certain commodity, client or area. Therefore, this chapter contains a number of topics and each specific topic contains related subjects. These subjects follow the Supply Manual format identified in 1.5.5 Supply Manual format. For example, topics covered are Major Crown Projects, Real Property Contracting and United States Foreign Military Sales.
2. It is recognized that all procurement scenarios such as those listed in this chapter cannot address every possible situation that Public Works and Government Services Canada (PWGSC) may face in its common service delivery environment. However, the types selected are based on historical usage and recommendations from the contracting community.

9.5 Major Crown Projects

Effective date: 2013-02-21

This section describes Major Crown Projects (MCPs), the responsibilities of PWGSC in MCPs, procurement strategy development as well as other key elements related to MCPs.

On April 1, 2012, the Treasury Board ARCHIVED - Policy on the Management of Major Crown Projects was rescinded and replaced by the Policy on the Management of Projects. However, due to its applicability to pre-existing MCPs, the following sections will remain in the Supply Manual.

9.5.1 Major Crown Projects - general information

Effective date: 2015-09-24

1. MCPs are by their very nature large procurements. The Supply Manual applies to them as it would to any other acquisition. What differs is the notion that participating departments must act in consort with one another in planning and overseeing the work performed by the contractor(s) in achieving the deliverables. No one department can act solely from its legislative point of view to the exclusion of the other participants.
2. A project is deemed to be an MCP when its estimated cost will exceed $100,000,000 and the Treasury Board (TB) would assess the project as high risk. However, TBmay require any project exceeding the sponsoring minister's delegated project approval authority to be managed as an MCP. As well, provision is made in the policy for a sponsoring department to request approval from TB to manage a project exceeding $100,000,000, but of lesser risk within a tailored MCP regime or outside the MCP management framework.
3. The additional aspects of managing MCPs include obtaining approval-in-principle from Cabinet for an MCPhaving significant policy or fiscal framework implications, and the following TB mandatory requirements:
   1. that the project leader be a senior manager within the sponsoring department accountable directly to the deputy minister;
   2. that the project leader be viewed as personally and visibly accountable for all aspects of the project;
   3. that a Senior Project Advisory Committee (SPAC) be established with membership consisting of senior representatives of departments participating in the project. The role of this committee is to advise the project leader on all aspects of the project and carry out the procurement review function for the project. SPACis addressed in more details in 9.5.20 Senior Project Advisory Committee;
   4. that an appropriate project performance measurement system be selected and implemented;
   5. that progress reports be submitted to TBat key events or as directed by TB;
   6. that a project evaluation report be submitted to TB; and
   7. that MCPs be reported to Parliament in accordance with the ARCHIVED - Management of Major Crown Projects.

9.5.5 Responsibilities of Public Works and Government Services Canada in Major Crown Projects

Effective date: 2010-01-11

In respect to MCPs, the Minister of PWGSCis accountable and responsible to Cabinet for the acquisition of the MCP goods and/or services under the Department of Public Work and Government Services Act and is responsive to the project leader. The Minister of PWGSCis accountable and responsible for all aspects of the contracting process and resulting contracts, including:

1. participate in the project as a participating department as described in TBpolicy on Management of Major Crown Projects;
2. manage the procurement process from solicitation through contract award to contract completion;
3. support the project in accordance with any existing legislation or general interdepartmental arrangements;
4. provide any project-specific services such as procurement and scheduling, as described in any agreement or Memorandum of Understanding (MOU), concluded with the sponsoring department;
5. help to define user requirements/selecting the most effective procurement approach;
6. ensure the best value for money through the optimum combination of specified quality, specified time and lowest life-cycle cost of the acquisition;
7. include procurement issues in risk assessments and risk management plans;
8. establish project files for all procurement related documents and deliverables;
9. develop a structured approach to document requirements and deliverables, if applicable;
10. ensure the contract is carried out pursuant to the legal framework and maintain the government standards of prudence, probity and equity, when dealing with the private sector;
11. develop, with the client, the rules of engagement pre-contract;
12. develop and release any formal and/or contractually binding communication between Canada's representatives and the bidder/contractor;
13. provide access and open and competitive bidding to suppliers through the Government Electronic Tendering Service;
14. pre-qualify suppliers and build supplier working relationships;
15. manage the solicitation process and documents;
16. make submissions to the TBfor authority to enter into contracts, to seek a pre-approval authority for amounts for anticipated amendments and to amend contracts;
17. lead all negotiations with contractors that could result in contract implications;
18. develop, with the client, the rules of engagement for post contract award interaction between the client and the contractor;
19. monitor Canada's interactions with the contractor to maintain the integrity of the contract; and
20. manage the contract in order to maintain the integrity of the contractual agreement and compliance with the contract requirements.

9.5.10 Early involvement

Effective date: 2020-10-21

1. One of the most important tasks for the PWGSC manager relative to a new MCP is to integrate into the Project Team, as soon as possible, and ensure participation at all levels of the project. One of the key requirements after establishing the operational objectives of the project is the development of the procurement strategy for the equipment, parts and services that will be delivered by the project. This is also one of the key areas of interest for ministers when considering the Memorandum to Cabinet and/or the TB Submission. Therefore, the Project Team must get involved in the project, as early as possible, to ensure best value of the procurement, and that clients consider all possible strategies before committing the project to solutions, which may subsequently conflict with government procurement policies and strategic objectives. Contracting officers should analyze with the client what opportunities may exist to support their obligations as well as their departmental targets related to green procurement and accessible procurement. Successful implementation of the Policy on Green Procurement requires the identification and implementation of environmental performance opportunities at both the strategic and operational levels, taking into consideration specific departmental buying patterns, sustainable development targets and other Government of Canada priorities.
2. Best value is not confined to the contractual process; it is equally important at the requirements definition stage. For many acquisitions, especially for MCPs, it is at this earlier stage that best value may be achieved. Trade-offs should be made among factors such as quality, service, cost, procurability, environmental considerations and socio-economic considerations linked to a particular industry or region of the country. Quality and the desired performance level should be related to intended use. The most desirable technical quality or suitability is not necessarily the most desirable procurement because it may not be the most economical. In complex acquisitions, a cost/benefit analysis may balance technical quality against such factors as initial and operating costs, economic life, service, maintenance and repair.

9.5.15 Memorandum of Understanding with client department

Effective date: 2010-01-11

1. A vital aspect in government contracting is the role played by PWGSC and its relationship with client departments at all stages in the life cycle management of goods and services in a MCP. Details of the PWGSC-client relationship will normally be covered in a signed general Memorandum of Understanding (MOU) between PWGSC and its client departments. These may be adjusted to suit particular PWGSC-client agreements. Acquisitions of a special or significant nature may require specific MOUs and more detailed treatment, such as that outlined in the TB policy Management of Major Crown Projects. Client departments are generally responsible for determining what they want, where and when. PWGSC is normally responsible for determining how goods and/or services will be provided to meet the needs of clients.
2. In terms of life cycle management, this means that:

   Requirements definition is, in varying degrees, a client responsibility, depending on government policy and the type of goods and/or services. By and large, the more technically complex, special, or unique the requirement, the more it will be a client responsibility to define. Conversely, the more common an item, the less need for client input, except, for example, to specify the quantity. Acquisition is a PWGSC responsibility, use is a client responsibility, and disposal of goods is a PWGSC responsibility.

3. This does not mean each party function in isolation. On the contrary, in the MOU it is essential that there be well-established lines of communication at all stages in the life cycle, reflecting the PWGSC-client division of responsibilities. In assessing their role and participation in the project, PWGSC must determine the nature and degree of the effect of the proposed project on their operations, asset base or other interests, and ensure that appropriate commitments are made; for example, by means of the MOU.
4. Unless the MOU for an MCP specifically states otherwise, the division of responsibilities between PWGSC and the client department will be governed by the agreements contained in Annex 1.1: Matrix of responsibilities between PWGSC and client departments for the procurement of goods and services (generic), which provides a generic division of anticipated types of responsibilities between PWGSC and client departments or in Annex: Specific Division of Responsibilities Agreements, which contains two client-specific agreements with the Department of National Defence.
5. PWGSC's cost of services provided to client departments in respect to a MCP is recovered directly from the client. The services to be provided and their costs are negotiated with the client department, approved by TB as part of the Program Approval submission, and the results must be included in the MOU.

9.5.20 Senior Project Advisory Committee

Effective date: 2015-09-24

The role and membership of the Senior Project Advisory Committee (SPAC) as well as the responsibility of PWGSC in the development of the procurement strategy for Major Crown Projects (MCPs) are addressed below.

9.5.20.1 Procurement strategy development

Effective date: 2023-04-11

1. PWGSC is responsible for developing and implementing procurement strategies within the framework of its client departments' needs, its legislative mandate and government policy. Operating departments must form a Senior Project Advisory Committee (SPAC) before initiating discussions with potential suppliers that could raise expectations as to the government's procurement strategy.
2. The government has confirmed that all procurements in excess of $2,000,000 must be reviewed for potential regional and industrial benefits. To ensure that this review is carried out in an efficient and cost-effective manner, and in recognition of the diverse interests involved, TB has established an interdepartmental procurement review process applying to all such procurements. In the case of Major Crown Projects (MCPs), this is carried out by the SPAC, whose role is defined in 9.5.20.10 Membership of the Senior Project Advisory Committee.
3. For guidance regarding how to integrate the Policy on Green Procurement in the procurement strategy, contracting officers should refer to the online course Green Procurement (COR405) available through the Canada School of Public Service;
4. Where the procurement strategies proposed for significant projects require Cabinet approval, sponsoring departments must consult with the Treasury Board Secretariat (TBS) in preparing the submission to Cabinet. These consultations must include the analysis of any socio-economic initiatives, and the views of TBS must be specifically included in the submission to Cabinet.

9.5.20.5 Senior Project Advisory Committee

Effective date: 2020-05-04

1. The Senior Project Advisory Committee (SPAC) provides an interdepartmental senior level forum for orienting a project to achieve relevant national objectives, stimulating agreements between the sponsoring and participating departments, resolution of interdepartmental issues, and review and discussion of project objectives and key project instruments. SPACs do not deliberate purely departmental issues, such as the operational requirement or departmental funding.
2. A SPAC must be established for all Major Crown Projects (MCPs) or those requirements exceeding $100,000,000. The Project Leader of the client department chairs this committee, and membership includes representation from other government departments with an interest in the project. Committee members from other participating departments act as advisors and facilitators to ensure the views of their departments are made known at the SPAC and to ensure prompt and effective action is taken to meet the obligations of their departments to the MCP.
3. Whenever a SPAC is convened, it also considers all significant associated procurements handled through the project office. SPAC meets at the call of the chairperson.

9.5.20.10 Membership of the Senior Project Advisory Committee

Effective date: 2020-05-04

1. The Project Leader must determine which departments are potentially affected by, or could have program interests in the MCP. The Project Leader must ensure that these departments are notified in writing as early as possible in the life of the project, so that they may decide whether they should formally participate in the MCP. Whenever an MCP is likely to require private sector involvement, the departments notified must include appropriate contracting authorities and industrial and regional benefit authorities.

2. The majority of MCPs will be procurement projects. Departments sponsoring procurement projects must, as a minimum, notify the following departments:
   Contracting authorities and service agents:

   1. PWGSC;
   2. Defence Construction Canada.
   Industrial and regional benefit departments and agencies:
   1. Innovation, Science and Economic Development Canada (ISED);
   2. Western Economic Diversification Canada;
   3. Atlantic Canada Opportunities Agency;
   4. Economic Development Agency of Canada for the regions of Quebec.
   Others:
   1. Privy Council Office;
   2. Treasury Board Secretariat;
   3. Department of Finance Canada;
   4. Employment and Social Development Canada.
   As a minimum, sponsoring departments must assess whether departments listed below should also be notified, particularly for the specific areas noted:
   1. Environment Canada, for environmental assessment considerations (may be required by statute under certain circumstances);
   2. Department of Justice Canada, to ensure timely assistance in resolving any complex legal issues that can arise;
   3. Employment and Social Development Canada, for labour pool considerations;
   4. Canadian Heritage, when remote sites or locations are involved,
   5. Global Affairs Canada, for international trade and export licensing; and
   6. Indian and Northern Affairs Canada.
3. Other departments may notify the project leader of their intent to participate in the MCP, at which time they become participating departments.

9.10 Real Property Contracting

Effective date: 2010-01-11

1. This section describes the responsibilities for real property contracting and provides some of the related procedures and methodologies.
2. Acquisitions Branch, Public Works and Government Services Canada (PWGSC), provides procurement services related to real property contracting for federal departments and agencies. Real Property Contracting (RPC), Acquisitions Branch, is responsible for contracting real property services such as architectural, engineering and facility maintenance services as well as construction services. It is separate and has different responsibilities from Real Property Branch (RPB), PWGSC, which manages a portfolio of real estate in Canada and is the Government of Canada's real property expert.

9.10.1 Real Property Contracting procedures

Effective date: 2023-03-30

1. Although most of the generic practices and policies of the department apply to real property contracting, there are differences. Some of these differences are a result of complying with applicable legislation, or adapting to industry practices, or simply the realities of the services being procured. Many fundamental review processes do not apply to real property requirements and some examples follow. The Expense Management Tool (EMT) Application for Registration form PWGSC-TPSGC 514 (PDF, 142 KB) (accessible only on the Government of Canada network) does not apply to architectural and engineering nor construction requirements.
2. Clauses specific for real property contracting can be found in subsection 5-R of the Standard Acquisition Clauses and Conditions (SACC) Manual. Departmental standard procurement templates and many policies exclude some or all of real property contracting requirements and do not apply to real property requirements. SACC Manual clauses identified as mandatory may not apply to real property requirements. Standard Real Property Contracting (RPC) templates provide guidance to their contracting officers.
3. All real property contracting work performed by Acquisitions Branch (AB) must be in accordance with the Government Contracts Regulations. The Federal Real Property and Immovables Act applies to the sale and purchase of real property, and leases, including all work performed through a lease. Real Property Branch (RPB), not AB, is responsible for requirements carried out under the Act. In order to protect the integrity of AB's system data, no requirements under the Act should be entered into the AB system.

9.10.5 SELECT

Effective date: 2020-07-01

1. SELECT is a database of pre-approved suppliers such as architects, engineers and construction trade contractors identified by their expertise and the services they provide. It is used by Public Works and Government Services Canada (PWGSC) to invite suppliers to bid on real property services procurements up to certain thresholds. SELECT provides a systematic rotation functionality that matches the specifics of the requirement with suppliers having the required expertise that are within a geographic range. Depending on the requirement, a supplier may be given the opportunity to accept or decline the work, or multiple suppliers may be given the opportunity to compete the requirement.
2. For consulting services estimated at $10,000 or less, SELECT generates a short list of three qualified suppliers. The most suitable and readily available supplier may be contacted directly. For consulting services estimated between $10,000 and below $100,000, SELECT identifies a single supplier that meets the discipline and experience profile requirements. In both of these cases, the approval authority is based on non-competitive contract entry. For consulting services below $100,000, the SELECT system may also be used to pre-select suppliers from which bids can be solicited.
3. For construction services estimated at $10,000 or less, SELECT generates a short list of three qualified suppliers. The most suitable and readily available supplier may be contacted directly. For construction services estimated between $10,000 and below $100,000, SELECT generates a short list of five qualified suppliers; however, the business practice in some locations is to select five to eight qualified suppliers, all of which are invited to bid. The supplier who submits the lowest-priced responsive offer is usually awarded the contract.

9.10.5.1 Use of SELECT for requirements subject to Comprehensive Land Claims Agreements (CLCAs)

Effective date: 2014-06-26

1. CLCAs are law. The CLCA obligations are legally binding because they are contained in agreements signed by Canada and backed by legislations.
2. If a requirement is subject to CLCAs, the contracting officer must either:
   1. Not use SELECT and proceed with the procurement process explained in section 9.35 Comprehensive Land Claims Agreements (CLCAs)

      or;

   2. Use SELECT and follow the more tailored process described in section 9.35.91 SELECT.

9.10.10 Architectural and engineering services

Effective date: 2017-05-12

The contracting officer must determine the procurement strategy in consultation with the client. The main method of supply for architectural and engineering services is the standard contract, but Real Property Contracting also uses alternative methods of supply like standing offers and supply arrangements. Due to the qualitative nature of the architectural and engineering industry, the submission of full design proposals represents a large investment of time, effort, and money on the part of consulting suppliers. In order to reduce the possibility of consulting firms spending large amounts of money preparing such proposals for Public Works and Government Services of Canada projects, the Department uses both one and two phase request for proposals for architectural and engineering services.

9.10.15 Construction services

Effective date: 2020-05-04

1. There are three primary methodologies used in the procurement of construction services for projects:
   1. Design-Bid-Build (D-B-B);
   2. Design-Build (D-B);
   3. Construction Management (CM).
2. The roles, relationships and responsibilities of the contracting parties vary considerably for each methodology. Choosing the optimum methodology is a key consideration for the project team. For construction services, the project team is composed of Real Property Contracting (RPC) of the Real Property Branch (RPB) and the client.
3. Many variations exist for each approach and the selection of one methodology over another should be carefully analyzed by all stakeholders during the development of the risk management plan, well in advance of the procurement, in order to determine the inherent risks, advantages and disadvantages associated with each methodology. The selection of a particular methodology for the delivery of construction services is based upon an analysis of those risks identified in the plan that may impact the priority objectives of the project during the project's planning and implementation stages.
4. Each methodology has advantages and disadvantages and one may be more suitable than another for any given project. The project team must weigh both the benefits and the shortcomings of using a specific methodology on their project. Traditionally, PWGSC has accepted the D-B-B methodology as the standard delivery process for construction projects. Although it may be time consuming, D-B-B provides the project team with a better 'comfort level' concerning costs and quality. Since design is 100 percent complete before construction begins, changes should be minimal.
5. CM and D-B have been used extensively in the private sector, but used sometimes in PWGSC. A bid solicitation, in the form of a Request for Proposal, is used for both these methodologies in order to determine the successful supplier. Design-Build solicitations should also include an honorarium for at least three suppliers that continue to the phase two of the selection process to compensate them for work not normally required in the submission of a proposal.
6. RPC generally uses an invitation to tender for construction contracts, with a public opening shortly following the specified closing time. The tenders are generally evaluated on the basis of the lowest priced responsive tender. Suppliers must submit their tenders in accordance with the invitation to tender and associated specifications and drawings. Contracting officers should consult the Standard Acquisition Clauses and Conditions (SACC) Manual clause R2710T for information on the submission of bids.
7. Prequalification of suppliers is not normally done. If required, justification should be provided for prequalification and the criteria established to ensure that the industry can respond appropriately. Although a two-stage prequalification process may be necessary, a two-envelope process is the preferred method in construction. Suppliers are asked to submit two sealed envelopes, where envelope "A" will include the response to the prequalification requirements (almost always a pass/fail type of criteria). If the content of envelope "A" demonstrates that the supplier is qualified, the envelope "B", including the price and bid security, is normally opened publicly with other responsive bids.
8. For requirements over $100,000, contracting officers must use the construction terms and conditions imposed by Treasury Board Secretariat (see clauses in subsection 5-R of the Standard Acquisition Clauses and Conditions (SACC) Manual). Bid security and contract security (clause R2890D) are also requirements above this threshold. The client should identify if additional or specialized insurance is required in the Insurance Terms for the contractor.
9. The Federal Contractors Program for employment equity does not apply to construction contracts.
10. The Minister of PWGSC has delegated to Real Property Branch (RPB) the ability to amend construction and maintenance contracts awarded by Acquisitions Branch (AB). This authority must be deducted from AB authorities to ensure that PWGSC does not exceed its overall authority from Treasury Board. The RPB Project Manager will submit, with the requisition, a risk management plan that will identify items that may result during the construction project. This plan will include a suggested dollar value called the "Risk Management Contingency". AB will review the plan and the suggested dollar value, and will establish an amount to seek approval for a Pre-approved Amount for Anticipated Amendments (PAAA).This amount will be used for subsequent amendments to the contract.

9.10.20 Elevator maintenance services

Effective date: 2017-04-27

This section of the Supply Manual has been removed. For reference purpose only, section 9.10.20 is available in the Supply Manual Archive (accessible only on the Government of Canada network), Version 2016-2.

9.15 United States Foreign Military Sales

Effective date: 2021-05-20

1. The Foreign Military Sales (FMS) program is a United States (US) Security Assistance program executed by the United States (US) Department of Defense (DoD) under the authority of the Department of State (DoS), that allows eligible foreign governments and international agencies to purchase defence articles and services from the US Government.
2. The FMS program is a mutually beneficial government-to-government method for the procurement of US defence articles and services that are not available commercially due to restrictions imposed by the Arms Export Control Act. Responsible arms sales furthers US national security and foreign policy objectives by strengthening bilateral defence relations, supporting coalition building, and enhancing interoperability between US forces and militaries of friends and allies. The FMS program allows the purchasing country to acquire US-origin export controlled technologies, access to US supply chains, mitigate risk afforded through leveraging the US procurement regime, and obtain value for money through economies of scale.
3. Sole sourcing through the FMS program may be considered as a method of procurement when the goods or services required relate to military equipment of US origin and when, on the basis of the information available at the time, those goods and services are available or can be made available from the US DoD.
4. PWGSC Washington Sector (PWGSC [W]) has delegated authority to procure through the FMS program. Land and Aerospace Equipment Procurement Support Sector (LAEPSS) may use the FMS delegated contracting authority to enter into agreements with the United States outside of the FMS program.

9.15.1 Foreign Military Sales overview

Effective date: 2021-05-20

1. United States (US) arms exports are legislated by its Arms Export Control Act of 1976 (AECA) and implemented through the International Traffic in Arms Regulations (ITAR).
2. The AECA gives the President discretion, which is delegated to the Department of State (DoS) and executed in collaboration with the Department of Defense (DoD), to designate which defence goods and services must be sold exclusively on a government-to-government basis via the Foreign Military Sales (FMS) program.
3. As such, the oversight and administration of the FMS program is shared between both DoD and DoS.
4. DoD’s Defense Security Cooperation Agency (DSCA) manages and implements the program in close coordination with the Defense Technology Security Administration (DTSA), Military Departments (MILDEP) or US DoD component responsible for the end item.
5. DoS is legislated the authority to approve or disapprove all arms sales and is responsible for continuous supervision and general direction for all sales.
6. Canadian procurements through the FMS program involves PWGSC, the client department whose collaboration plays an important role in implementing and sustaining FMS requirements, and Innovation, Science and Economic Development Canada (ISEDC) where the Industrial and Technological Benefits (ITB) Policy is applicable to the acquisition.
7. The request for a FMS requirement is initiated through a submission of a Letter of Request (LOR), and the US government (USG) responds with a Letter of Offer and Acceptance (LOA) which serves as the proposal and the resulting government-to-government agreements once signed and accepted.

9.15.2 Foreign Military Sales planning

Effective date: 2021-05-20

1. PWGSCHeadquarters, (PWGSC [H]) should engage PWGSC (Washington [W]) to determine whether any of Canada’s stated requirements may include goods and services that are export controlled by the United States under the Arms Export Control Act (AECA) and the regulatory instrument that implements the AECA, the International Traffic in Arms Regulations (ITAR). It should further be determined whether any goods and services that may meet Canada’s requirements are ITAR restricted, and whether this restricts competition, reduces the potential sources of supply, or impacts the choice of procurement strategy. In determining the procurement strategy, the commodity manager in conjunction with PWGSC (W)should consider whether a sole source procurement is warranted, whether a direct commercial sale approach is feasible, and whether a competition should be held to fulfill the requirement notwithstanding the identification of a source of supply that is subject to ITAR.
2. Quite often the weapon system can only be purchased through the FMS program. The Arms Export Control Act gives the President discretion to designate which military end item must be sold through the FMS program exclusively. This discretion is delegated to the Secretary of Defense and is executed by the Defense Security Cooperation Agency (DSCA) in close coordination with the Defense Technology Security Administration (DTSA) and the Military Department (MILDEPT) or US DoD component responsible for the end item. The Department of State approves or disapproves all sales, and is responsible for the continuous supervision and general direction of all sales. Four general criteria are used to determine if a sale is required to proceed through the FMS program: legislative/presidential restrictions; DoD/MILDEPT policy, directive or regulatory requirements, e.g., the National Disclosure Policy, government-to-government requirements and interoperability/safety requirements for US Forces.
3. Infrequently, the commodity being acquired is available under the Foreign Military Sales (FMS) program and also available commercially from other markets. In this case, a competition may be launched which allows both Letters of Offer and Acceptance (LOA) under the FMS program, and commercial bids, to be submitted in response to the solicitation.

9.15.3 Foreign Military Sales procurement process

Effective date: 2021-05-20

1. Before procurement through the FMS program is initiated, PWGSC (Headquarters [H]) will determine whether the provisions of Canada’s Trade Agreements apply and will take action accordingly. PWGSC (H) will also be responsible for responding to any request from the client department regarding a National Security Exception (NSE). All such information will be provided by PWGSC (H) to PWGSC (Washington [W]) following assignment of the requisition, in a timely manner.

2. Formal initiation of procurement through the FMS program is similar to the commercial process. The following documents must be submitted by partner client departments to the PWGSC Central Allocations Unit (CAU), as per section 2.30 Requisition receipt:

   1. A signed 9200 Requisition form;
   2. A Statement of Work or Statement of Requirement; and
   3. A Security Requirement Checklist (SRCL).
   Unless the procurement strategy is “ FMS in competition”, the following must also be submitted:
   1. A Sole Source Justification (see section 3.15 Non-competitive contracting process); and
   2. A table with responses to the Treasury Board sole source 7 questions (see section Annex 3.1: Treasury Board questions for sole source).
3. Given all FMS agreements are in US currency, the clients may choose to submit the 9200 Requisition Form for Foreign Military Sales acquisitions in US currency with the estimated value in Canadian currency at the time of the requisition derived from the Bank of Canada outlined in the 9200 Requisition Form as a note.
4. CAU will then allocate the file to the appropriate commodity manager for approval of the procurement strategy.
5. The decision by the PWGSC (H) commodity manager to source the requirement through the FMS program must be adequately documented, for both competitive and sole source requirements. Some or all of the following information must be provided:
   1. the Goods and Services Identification Number (GSIN);
   2. the Advance Contract Award Notice (ACAN) and its result, if one was published;
   3. the sole source justification, unless the FMS purchase is the result of a competition;
   4. any other pertinent information leading to the decision to sole source through FMS such as partner client's justification or confirmation from the US DoD that the items is controlled.
6. When the commodity manager has determined that the requirement will be sole sourced through the FMS program, or a solution selected through a competitive process is offered through the FMS program, they will reallocate the requisition and supporting documents to PWGSC (W) using form PWGSC-TPSGC 1062-1 (PDF, 195 KB) (accessible only on the Government of Canada network).
7. PWGSC (W), in its capacity as the sole accredited Canadian procurement agency to the US DoD, is the departmental agency responsible for dealing with the US Government on all matters directly related to the FMS program. PWGSC (W) coordinates all pertinent contractual and administrative arrangements in the US on behalf of PWGSC and its clients.

9.15.4 Foreign Military Sales required documents

Effective date: 2021-05-20

1. Material to be obtained through FMS must be identified by its NATO Stock Number (NSN) whenever possible.
2. PWGSC (Washington [W]) will review each requisition and Statement of Work (if applicable) to ensure the adequacy and appropriateness of the information. If satisfactory, PWGSC (W) will prepare and submit a Letter of Request (LOR) to the applicable US DoD organization. If the information is found to be unsatisfactory, PWGSC (W) will provide comments for the client to revise the documents.
3. The USG’s response to a LOR is a Letter of Offer and Acceptance (LOA). In the case of a competition, the LOA may require additional detailed information in order to fully respond to the requirement stated in the solicitation documents and enable evaluation.
4. Upon receipt of the LOA, PWGSC (W) will carry out a verification to determine whether the LOA responds to the LOR and, if satisfactory, will request approval/concurrence as well as funding from the partner client department if the amount exceeds the requisition value on file.
5. The initial deposit identified on a LOA is not negotiated as the FMS program operates on a “no profit/no loss” basis and US laws prohibits it from spending US taxpayers funds on foreign partners’ requirements. Therefore, immediately following the acceptance of the LOA by PWGSC (W), funds are transferred from the partner client to the USG via the Federal Reserve Bank in New York. For the Department of National Defence (DND), Assistant Deputy Minister Materiel (ADM MAT) will make the transfer provided that all departmental financial policies are met. The US DoD will take no action on a signed LOA until the transfer of funds has been completed.

9.15.5 Foreign Military Sales agreement protocol

Effective date: 2021-05-20

1. Procuring the US DoD for the supply of material or for the provision of services on a government-to-government basis is affected through the exchange of a Letter of Request (LOR) prepared by PWGSC (Washington [W]) and of a Letter of Offer and Acceptance (LOA) prepared by the US. LORs are sent to the applicable military department, the US Department of State and Defense Security Cooperation Agency, a defence department agency that oversees security assistance programs.
2. There are two types of Letter of Requests (LORs):
   1. LORfor Letter of Offer and Acceptance (LOA) – procuring from the US DoD for the supply of material or for the provision of services on a government-to-government basis is initiated through the exchange of a LOR prepared by PWGSC (W) and of a LOA prepared by the US. LORs are sent to the applicable military department, the US Department of State and DoD’s Defense Security Cooperation Agency (DSCA). In the case of competition, a Request for Proposal document may be considered an LOR.
   2. LORfor Price & Availability (P&A) – a LOR for P&A can be sought when seeking to obtain costing data or confirmation as to the exportability/releasability of an end item. However, it should be duly noted that the USG maintains that if a purchaser requests FMS data after soliciting bids from contractors, the purchaser must demonstrate that commercial acquisition efforts have ceased before any FMS data will be provided. If the purchaser obtains FMS data and later determines to request a commercial price quote, the FMS offer may be withdrawn.

9.15.10 Foreign Military Sales time frames

Effective date: 2021-05-20

1. The standard period of time for a response from the US DoD to an LOR submitted by PWGSC (Washington [W]) on behalf of Canada, is as follows:
   1. 45 days for Blanket Order LOAs, training LOAs, Cooperative Logistics Supply Support Arrangement (COLOGs) and associated amendments;
   2. 100 days for Defined Order LOAs and associated Amendments;
   3. 150 days for Defined LOAs considered “customer-unique” in nature and associated Amendments.
2. US law mandates that Congress be notified and approve FMS sales that meet a certain threshold, a process known as Congressional Notification (CN). Timelines for the CN process varies, however this US approval requirement could add up to six (6) months to the overall procurement process timeline.
3. As FMS cases are atypical agreements, it is not unusual to have LOAs and amendments exceed the projected targets based on the USG workloads and high priority cases required to support US Foreign Policy.

9.15.15 Foreign Military Sales pricing and payment

Effective date: 2021-05-20

1. An LOA is used to submit price estimates to the purchasing country. LOA prices may include, but are not limited to, the cost of the item; non-recurring research and development (R&D) and production costs; packing and handling plus administrative surcharges. The item price is the same price that would be charged to any other purchaser, including the US Armed Forces.
2. Once an LOA has been signed, the applicable MILDEPT will leverage their own solicitation process to enter into agreements with the US supplier on behalf of the purchasing country. The USG contracting timeline for an end item identified in a FMS case could take up to 12-24 months after the LOA has been signed, with delivery several years later. This is particularly true for complex weapon systems.
3. The price quoted in the LOA may not match the cost of the items upon delivery. The final price is determined from actual contracted costs and any other surcharges that is incurred by the US Government. These costs are charged by the US Government to the purchasing country in accordance with US laws and regulations.

9.15.20 Foreign Military Sales administrative fees

Effective date: 2021-05-20

1. The Arms Export Control Act states that the United States Government (USG) must manage the FMS program at no cost or profit to the USG. The Act mandates collection of a percentage-based administrative surcharge on FMS cases to recover all applicable US costs to execute, manage, and oversee the FMS program. This surcharge is assessed against the value of the FMS case. The work covered includes case writing, case management/execution (cost, schedule, and performance), case closure and periodic reviews.
2. As of June 2018, the FMS administrative fee is 3.2% of the total FMS case value which pays a significant portion of the salaries and operating costs of Security Assistance Organizations and other Defence Department personnel who carry out the FMS case on behalf of the purchasing country.

9.15.25 Foreign Military Sales non-recurring costs

Effective date: 2021-05-20

1. When requesting an LOA, PWGSC (Washington [W]) sends a Letter of Request (LOR) to the US DoD that includes a request to waive any non-recurring costs (NRCs). There are three instances when the costs can be requested to be waived:
   1. The sale would significantly advance US government interests in NATO standardization;
   2. Imposition of the charge would result in the loss of the sale; or
   3. The increase in quantity resulting from the sale would result in a reduced unit cost for the same item being procured by the US government.
2. If none of the above apply and there are any customer unique requirements to conform a US end item to a partner’s own standard(s), the foreign partner is then responsible for the associated NRCs.

9.15.30 Release of information

Effective date: 2021-05-20

This section has been removed as per Policy Notification 143: Update to Foreign Military Sales (FMS) processes.

For reference purposes, section 9.15.30 is available in the Supply Manual Archive (accessible only on the Government of Canada network), Version 2021-1.

9.15.35 Processing of documents

Effective date: 2021-05-20

This section has been removed as per Policy Notification 143: Update to Foreign Military Sales (FMS) processes.

For reference purposes, section 9.15.35 is available in the Supply Manual Archive (accessible only on the Government of Canada network), Version 2021-1.

9.15.40 Foreign Military Sales agreement administration

Effective date: 2021-05-20

1. PWGSC(Washington [W]) is responsible for agreement administration including billing/payments and expediting delivery, except for Cooperative Logistics (COLOG) cases, throughout the Period of Performance (PoP) of the FMS agreement. PWGSC (W) will also manage the timely delivery of the goods and services as per the agreed upon Terms and Conditions of the LOA.
2. PWGSC (W) is responsible for arranging program management reviews and/or status review meetings to allow clients to discuss related matters with representatives from the US DoD.
3. PWGSC (W) is responsible for the life cycle of the FMS cases as such all materiel acquired must be accounted for until the FMS case is closed.
4. By exception, Canada does not follow the payment schedule as listed in the Letter of Offer and Acceptance (LOA). Other than the initial payment that must be made in full, subsequent payments from the partner client will only be requested when funds are exhausted by the US DoD.
5. PWGSC (W) will only request payment from partner clients when a determination is made that the goods/services being provided by the US DoD exceeds the amount paid to date. Such request for payments are referred to as “top-up payments”. Due to the complexity of the US DoD reporting process, request for “top-up payments” may occur several months after the initial deposit is made.
6. As the signatory of all LOAs, PWGSC (W) and the partner client share accountability for all items delivered under a FMS case in accordance with the International Traffic and Arms Regulations (ITAR). Therefore, if any item acquired is lost, stolen, or unaccounted for while in the partner client’s custody during the execution of a FMS case, a written report must be submitted to PWGSC (W) so that a notification to the US DoD and the Department of State can be made in a timely manner. The FMS case that the item was acquired under must be clearly stated in the written report.
7. Once PWGSC (W) submits a closure agreement to the partner client then the accountability for the asset transitions solely to the partner client department. From then on, in the event that an asset is lost, stolen, or unaccounted for, the partner client department is responsible for submitting a written report to the US Embassy in Ottawa’s Office of Defense Cooperation (OttawaODC@state.gov). The FMS case that the item was acquired under must be clearly stated in the written report.

9.15.45 Foreign Military Sales agreement amendments

Effective date: 2021-05-20

1. PWGSC(Washington [W]) will negotiate agreement amendments, when required. The procedure for contract amendments to FMS cases are similar to the steps outlined in 9.15.3 Foreign Military Sales procurement process.
2. When funds in certain contracts (cases) have not been fully expended, a case amendment extending the period of time to use up funding may be requested. This normally applies to arrangements where the scope of work is not affected.

9.15.50 Foreign Military Sales agreement closing

Effective date: 2021-05-20

1. FMS cases for acquisition of equipment must have a period of performance (PoP) that is valid until final delivery.
2. Most FMS cases for sustainment of equipment remain valid for a period of up to five (5) years before the closure process is initiated. There are exceptions when a FMS case may exceed the five (5) year period of performance. Such exceptions are reviewed on a case by case basis.
3. When delivery is completed and final determination of cost is made, PWGSC (Washington [W]) will initiate closing action and will seek finalization of accounts. PWGSC (W) will request a cheque payable to the Receiver General for Canada if funds are due to Canada. If funds are owed to the United States Government (USG), funds will be requested from the Canadian client.
4. Closure of FMS agreements involving procurement from commercial suppliers may take place years after delivery of material because of the need to audit and renegotiate certain requirements peculiar to the US DoD procurement process. A minimum of two years is required to close out an FMS case after final delivery of the goods and/or services.
5. At the time of final closure, the estimated amounts in the LOA are changed to actual costs and a final statement of account is issued.

9.15.55 Foreign Military Sales third party transfers

Effective date: 2024-04-19

1. Pursuant to the AECA and the Terms and Conditions of a LOA, defence articles and services acquired through FMS must not change end use or end user without prior approval from the DoS. This includes transfers to:
   1. Industry:
   2. Other Government of Canada Departments (not including DND, Canadian Coast Guard, or Communications Security Establishment [CSE]); or,
   3. Any allied Government.
2. If there is a requirement to transfer an item acquired under the FMS program to industry, another Government of Canada department, or any allied Government, whether temporarily or permanently, an approval from the DoS must be obtained prior to the transfer to ensure compliance with the ITAR.
3. The partner client is responsible for initiating the Third Party Transfer (TPT) process by submitting the required documents (TPT Questionnaire and duly signed End Use Assurance letters) to PWGSC (Washington [W]) for approval from the Department of State.
4. Clients can obtain the TPT Questionnaire and End Use Assurance from the appropriate contracting authority within PWGSC (W).
5. PWGSC (W) is responsible for submitting TPT requests on behalf of clients when there is an active FMS case.
6. Once PWGSC (W) submits a closure agreement to the partner client, the client department, except for DND clients, are responsible for initiating and processing the TPTrequest directly with the US Department of State - PM_RSAT-TPT@state.gov. DNDclient requests should be submitted to the Controlled Technology and Access Transfer (CTAT) office - CTAT.Help@forces.gc.ca.
7. Approvals from the US Department of State can take on average 6-12 weeks depending on the complexity and sensitivity of the end item. For major complex end items the average lead time can be at least 6 months to 1 year.

9.15.60 Foreign Military Sales versus Direct Commercial Sales

Effective date: 2021-05-20

1. Unless an item being procured is designated FMS-only, the US Government takes a “neutral” position on whether a foreign partner selects FMS or Direct Commercial Sales (DCS).
2. Therefore, the US Government will not support any inquiry or development of a LOA if it is known that the customer is price shopping or seeking comparison between FMS and DCS.
3. The USG will not commence work on a proposal for a FMS offer from a foreign partner that is negotiating a DCS contract for the same articles or services from the same provider. In the case of competition allowing both FMS and commercial offers, participation in the solicitation process is at the discretion of the USG.
4. If it becomes apparent that the customer will pursue the same articles or services through DCS, then the USG may withdraw the FMS offer or request that the foreign partner cancel their FMS request.

9.15.65 Foreign Military Sales further information

Effective date: 2021-05-20

For more information on the FMS program, clients can contact the PWGSC (Washington [W]) TPSGC.PAWSHDCBDG-APWSHDCDGO.PWGSC@tpsgc-pwgsc.gc.ca or visit the following Defense Security Cooperation Agency websites:

1. Foreign Military Sales; and
2. Security Assistance Management Material.

9.20 Co-Operative Logistics (COLOG) and blanket order cases with the United States Department of Defense

Effective date: 2021-05-20

1. This section provides details of the Canada/United States (U.S.) of America Co-Operative Logistics (COLOG) Supply Support Arrangement (CLSSA) and describes specific responsibilities of Public Works and Government Services Canada (PWGSC) in relation to this supply support arrangement.
2. The COLOG/CLSSA was initially approved in 1965. PWGSC will make the necessary arrangements to establish with the USG the contractual instruments such as COLOG arrangements or blanket order cases (BOC), thus allowing the Canadian Department of National Defence (DND) to obtain directly from the U.S. Department of Defense (DoD), material and services, as required.
3. COLOG/CLSSAs allows for the pre-stock and storage of consumable items that are needed and used by the purchasing country on a recurring basis. Under COLOG arrangements, the purchasing country acquires an equity in the supply system of the appropriate service within the US DoD through a Foreign Military Sales Order (FMSO) I case that establishes stock levels, which is adjusted as required, depending on usage. FMSO I cases are to be viewed as investments into the US DoD supply chain, as such the customary payment exception in section 9.15.40 is not applicable. The associated financial commitment for FMSO I cases must be paid in full upon acceptance by the purchasing country.
4. FMSOII cases are used by the purchasing country to requisition consumable items to replenish their in-country stock. FMSO II cases work in conjunction with FMSO I cases. FMSO II cases allows the purchasing country to submit requisitions for consumable items directly into the US DoD supply chain. FMSO II cases are similar to a call up against a standing offer, as such payments to the USG are made after a requisition has been submitted into the US DoD supply chain. For more on payments, see section 9.15.40 Foreign Military Sales agreement administration.
5. DND has purchased an equity in each of the three US Forces supply systems, US Army, Air Force and Navy, on an as and when required basis, and pays for only those items it actually draws out of the systems. As such, DND is not required to establish FMSO I cases. However, if an item is unique or where a new weapon system is being introduced a new FMSO I case may be required. These instances are evaluated on a case by case basis.
6. Once a FMSO I case has been established, DND leverages the supply chain by establishing FMSO II cases on a yearly basis. There are exceptions when FMSO II cases can be established over multiyear up to 5 years. This requires engagement with the appropriate US DoD entity and their subsequent approval. FMSO II cases must be established before the Department of National Defence (DND) is allowed to acquire consumable items from the US DoD supply systems.

9.20.1 Requisition receipt

Effective date: 2010-01-11

1. Contracting officers should refer to 9.15 United States Foreign Military Sales or information concerning the requisition process of the U.S. FMS program.
2. The COLOG Operations Office in the Defence and Major Projects Sector (DMPS), Acquisitions Branch, will review requisitions for COLOG and BOC and provide support to these activities, as detailed under the Referral Program activities (see 9.20.20 Referral Program), on behalf of PWGSC.

9.20.5 Planning

Effective date: 2010-01-11

1. Under COLOG arrangements, a participating country is required to purchase an equity in the supply system of the appropriate service within the U.S. DoD through a Stock Level Case, which is adjusted as required, up or down, depending on usage. Canada has purchased an equity in each of the three U.S. Forces supply systems, U.S. Army, Air Force and Navy, on an as and when required basis, and pays for only those items it actually draws out of the systems.
2. Since U.S. law prohibits the U.S. DoD from expending its funds on speculative purchases for other than its own Forces, there is a requirement for deposits to be made usually monthly, in advance, by participating foreign nations. The amount of the deposit should correspond to the anticipated delivery value in the succeeding quarter.
3. A final accounting is carried out when all items have been delivered or cancelled and all discrepancies have been resolved. This accounting results in a contract amendment requiring either a final payment by Canada or a refund to Canada.

9.20.10 Establishment and renewal of a Stock Level Case (FMSO I)

Effective date: 2010-01-11

1. It is necessary to establish a Stock Level Case, also referred to as Foreign Military Sales Order (FMSO I), to obtain COLOG support from the U.S. DoD. When the U.S. Air Force, U.S. Army or U.S. Navy, as applicable, agrees to supply, through COLOG, spare parts to the Armed Forces of a foreign nation, the U.S. material managers involved will take action to augment the U.S. DoD supply systems to correspond to the client's anticipated requirement.
2. Stock Level Cases are negotiated as required.

9.20.15 Establishment of a Requisitioning Case (FMSO II)

Effective date: 2010-01-11

1. PWGSC establishes annually a Requisitioning Case, also known as a Foreign Military Sales Order (FMSO) II, before Department of National Defence (DND) is allowed to draw spare parts from the U.S. DoD supply systems.
2. PWGSC has delegated to DND the responsibility for placing orders directly with the U.S. Navy, the U.S. Army and the U.S. Air Force, as applicable, once the appropriate Stock Level Case (FMSO I) and Requisitioning Case (FMSO II) are in place. Requisitions for COLOG eligible items are transmitted directly by DND to U.S. DoD by means of a computer terminal linked to the U.S. Defense Automatic Addressing System Center, which provides direct access to the U.S. military supply systems.

9.20.20 Referral Program

Effective date: 2010-01-11

1. There are three aspects to the Referral Program:
   1. referral of items with an extended price of USD $20,000 at the time of requisitioning;
   2. the Quarterly List of all items procured through COLOG;
   3. the Annual List of items procured through COLOG.

   This is not a part of the establishment of the contract but rather action that occurs after the contract is established and throughout the life of the contract as long as COLOG requisitions are submitted against the case.

2. The following summarizes the Referral Program:
   1. When the extended price of an item is USD $20,000 or more, the DND COLOG Office responsible for submitting requisitions through COLOG on the U.S. DoD systems, will provide information on demand to the PWGSC COLOG Operations Office (Defence and Major Projects Sector [DMPS]).
   2. The purpose of this referral is to allow DMPS to review the procurement to determine whether procurement through Canadian and/or other sources is more advantageous to Canada.
   3. The DMPS COLOG Operations Office coordinates the review with input from the PWGSC product managers as required.
   4. If it is determined that the item is available from the Canadian industry, procurement action should be completed in Canada unless it is established that such action is not justifiable from a cost standpoint or that other conditions are unacceptable, particularly as they pertain to operational requirements. Similarly, if it is determined that the item is available at less cost from any other commercial source of supply, procurement action may be completed commercially unless it is established that such action is not justifiable from a total cost standpoint or that other conditions are acceptable, particularly as they pertain to operational requirement.
   5. If the item cannot be procured through the Canadian or foreign-based companies, DND will be advised to demand it from the U.S. DoD through COLOG.
   6. All referrals should be processed as expeditiously as possible. A full reply or at minimum, an interim reply will be provided to DND within 30 days of receipt of the referral.
   7. The second portion of the demand Referral Program is that the DND COLOG Office, responsible for the COLOG program, will forward quarterly to DMPS a printout, which will list all procurement through COLOG over the last quarter, regardless of value or priority.
   8. The third portion of the Referral Program is similar to the second portion except that it is based on an annual list being provided by DND of all procurement through COLOG for the last fiscal year. A similar review as the one performed for the quarterly reports may be conducted.
   9. The purpose of these reviews is to provide an overview of procurement being done through COLOG over a period of time. This would not be visible with only a review of procurement of individual items with a value over USD $20,000. This review will allow PWGSC to seek sources based on requirements demanded over time. Often supply of an individual item may not be attractive to a supplier; however, when procurement of individual items over a period of time is collectively viewed, the combined value may be very attractive to a supplier.

9.20.25 COLOG Termination

Effective date: 2010-01-11

If Canada decides to terminate COLOG arrangements, there is a process that varies with the U.S. DoD service involved, which will identify those items that Canada is liable to procure from the U.S. DoD.

9.25 Use of the Defence Production Revolving Fund and Loan Account

Effective date: 2010-01-11

Under section 16 of the Defence Production Act, in particular, the Minister of Public Works and Government Services Canada (PWGSC) is authorized to acquire, utilize, store, maintain, transport, sell, exchange or otherwise dispose of defence supplies, services, projects, real or personal property. The Minister is also empowered to authorize loans or advances and loan guarantees. Expenditures incurred pursuant to the above authority are to be expended from the Consolidated Revenue Fund.

9.25.1 Program description

Effective date: 2010-01-11

1. The Defence Production Loan Account (DPLA) provides PWGSC with an account to make loans or advances to aid in defence procurement such as working capital loans or advance payments on contracts and to make payment for such.
2. Although the Adjustment of Accounts Act of 1980 eliminated the term Defence Production Revolving Fund (DPRF) from the Defence Production Act, PWGSC was advised by Treasury Board that it will continue to designate and operate the DPRF for other than loan transactions. Thus the DPRF provides PWGSC with a budgetary account to purchase defence supplies, to make payment for such, and to get reimbursed out of an appropriation of a client (for example, Department of National Defence) or by an agent of Canada or by an associated government. The DPRF can be used for the following purposes:
   1. finance the stockpiling of "essential" materiel or defence supplies;
   2. advance production of defence supplies/materiel to permit workload smoothing of defence industrial facilities; and
   3. temporarily fund the acquisition of defence supplies to meet urgent requirements, pending appropriation of funds to finance unplanned requirements.
3. As stated in the Defence Production Act, associated governments are the governments of the British Commonwealth and of the North Atlantic Treaty Organization, or the government of any other country designated by the Governor in Council, as being a country the defence of which is vital to Canada.
4. The DPRF was established for interim financing purposes, as it has to be reimbursed by a client or an associated government or whoever receives the finished product. As such, the DPRF can be used to make initial payments and subsequently recover such payments from the client. It is simply a temporary accommodation, and it would be illegal and improper to use it for a permanent commitment of any kind. Although the use of the DPRF requires that money expended will be reimbursed at the time delivery is made to the client, such use does not preclude the making of progress payments to suppliers and the interim recovery of these progress payments from the client.
5. Expenditures charged to the DPRF may be used for the following purposes:
   1. Stockpiling of materials or substances, such as steel and oil, designated by the Governor in Council, as essential to the needs of the community. In such cases:
      1. an order-in-council is required;
      2. a client appropriation is not immediately required for stockpiling essential materials, but the cost of materials used must be recovered from the appropriation of the client.
   2. Stockpiling of defence supplies, which Canada deems it advisable to maintain (certain defence supplies such as ammunition.) In such cases:
      1. an order-in-council is not required;
      2. although an appropriation is not immediately required for stockpiling defence supplies, Department of National Defence (DND) must reimburse the DPRF from an appropriation when the finished goods are delivered to DND.
      3. acquisition, storage or maintenance of defence supplies. In such cases:
         1. an order-in-council is not normally required;
         2. a client appropriation is required.
6. Loans or advances charged to the Defence Production Loan Account (DPLA) may be used for any purpose other than for capital assistance. When loans are involved:
   1. an order-in-council is not required;
   2. although an appropriation by the client is not immediately required, the liability for any loss must ultimately be covered from the appropriation of the client.
7. Losses sustained pursuant to a loan or an advance made against the DPLA can only be credited pursuant to an appropriation by Parliament.

9.30 Purchases from CORCAN

Effective date: 2014-11-27

1. Correctional Service Canada (CSC) has sponsored a rehabilitation program within its institutions designed to train inmates so that after their release, they have a better chance of obtaining employment, based on the experience gained while in the program. This program is known as CORCAN. CORCAN is a key rehabilitation program of CSC. It is mandated to provide employment training and employability skills to offenders in federal correctional institutions in support of the social policy of the Government of Canada.
2. From an acquisition perspective CORCAN has a dual role, one as a purchaser of goods and services that it uses in its production and operations, and the other as a supplier of goods and services to federal government departments, agencies and Crown corporations.

9.30.1 Requisition receipt

Effective date: 2014-11-27

When in receipt of a requisition for goods and services that are available from CORCAN, Public Works and Government Services Canada (PWGSC) contracting officers, whenever possible and in recognition of the potential benefits to Canada, will recommend to the client that CORCAN be considered as a source of supply. The opportunity to consider acquiring goods and services from CORCAN will be promoted regardless of whether PWGSC has issued a mandatory procurement instrument for such requirement.

9.30.5 Memorandum of Understanding

Effective date: 2014-11-27

The Memorandum of Understanding between Public Works and Government Services Canada and CORCAN (as a supplier) expired; therefore this section has been deleted from the Supply Manual. General information about the process has been updated and is provided in section 9.30.10 Implementation.

For reference purpose only, section 9.30.5 is available in the Supply Manual Archive (accessible only on the Government of Canada network), Version 2014-4.

9.30.10 Implementation

Effective date: 2022-05-12

1. Since acquisitions from CORCAN are considered "transfers" of goods and services between federal organizations, they are not contracts within the meaning of the Government Contracts Regulations (GCRs) and the Directive on the Management of Procurement. The procurement provisions of the trade agreements do not apply to a "transfer" between CORCAN and the Government of Canada; these transactions are not procurements and as such are excluded from the application of the trade agreements. Furthermore, Comprehensive Land Claims Agreements do not apply on these transactions.
2. If a department, agency or Crown corporation is satisfied that a particular good or service offered by CORCAN provides good value, and funds are available, then the acquisition may take place without calling for bids and without reference to the traditional Treasury Board contract entry levels.
3. But if a department, agency or Crown corporation decides to use Public Works and Government Services Canada, Acquisitions Program (AP) as the contracting authority, AP internal policies apply. In this case, even though arrangements with CORCAN are not governed by the GCRs and the Directive on the Management of Procurement, all existing departmental limits governing the approval of entry into and signing of contract apply.
4. Documentation of an acquisition from CORCAN takes the form of a "Stores Transfer Order".
5. Additional information on how federal organizations can acquire goods and services directly from CORCAN can be obtained by contacting a local CORCAN sales representative at 1-800-267-0354 or by visiting the CORCAN website.

9.34 Duty to Consult and Accommodate Aboriginal Peoples

Effective date: 2024-04-19

The contracting officer should remind the client of the Duty to Consult and Accommodate, and encourage the client to undertake consultation with Indigenous groups. Please refer to section 2.16 Duty to Consult and Accommodate Aboriginal Peoples.

9.35 Modern Treaties

Effective date: 2018-06-21

9.35.1 General information on Modern Treaties (Comprehensive Land Claims Agreements)

Effective date: 2024-04-19

ATRIS can be accessed at the following website address: Aboriginal and Treaty Rights Information System (ATRIS).

1. Modern treaties, also known as Comprehensive Land Claim Agreements (CLCAs), are typically tripartite, including Indigenous organizations or nations, the Crown, and provincial/territorial governments as signatories. They provide clarity and predictability with respect to land and resource rights, ownership, and management.
2. Modern treaties/CLCAs also seek to ensure fair treatment of Indigenous interests with respect to cultural, social, political and economic rights, including rights to lands, and to fish and hunt and practice their own cultures. The rights defined in them are constitutionally protected within section 35 of the Constitution Act, 1982.
3. There are currently 25 modern treaties in effect and 22 contain economic measures with procurement obligations. These 25 modern treaties are located in Yukon (11), Northwest Territories (4), Nunavut (1), Quebec (4), Newfoundland and Labrador (1) and British Columbia (4).
4. No two modern treaties are exactly the same, and therefore each treaty has to be read and understood individually to determine the applicable contracting obligations.
5. Most modern treaties/CLCAs include measures dealing with procurement, and although these measures are not always identical in the various agreements, they are all aimed at enhancing economic opportunities of the Indigenous group benefiting from the agreement (referred to as "Modern treaty/CLCA beneficiaries"), usually through increased possibilities of competing successfully for contracts in their settlement areas, or of participating in employment, training or subcontracting opportunities related to the procurement.
6. Canada’s procurement obligations vary with each modern treaty/CLCA, but can include:
   1. Separating requirements into commodity or geographic groupings, whenever practical and consistent with sound procurement management, to permit smaller and more specialized firms to submit bids;
   2. Notification of the procurement to the land claimant groups and/or modern treaty/CLCA beneficiary firms;
   3. Use of modern treaty/CLCA business directories/lists (refer to 9.35.60 Business directories/lists);
   4. Use of bid evaluation criteria to benefit modern treaty/CLCA beneficiaries, and wherever practical and consistent with sound procurement management; and
   5. Right of first refusal for procurements related to certain topics, e.g. archaeology, heritage, parks, surveying (refer to 9.35.40 Right of First Refusal).
7. During the procurement planning stage the contracting officer must determine whether any Modern Treaty/CLCA procurement obligations apply, and, if so, how they will affect the procurement strategy. The contracting officer must also ensure that the procurement file contains adequate documentation on the measures taken to address any Modern Treaty/CLCA procurement obligations, especially with regards to sections 9.35.25 Requirements definition, 9.35.35 Notification of procurement and 9.35.45 Evaluation criteria.
8. To determine if a requirement is subject to any Modern Treaties/CLCAs , contracting officers must consult the Aboriginal and Treaty Rights Information System (ATRIS). ATRIS is a web-based, geographic information system that locates Indigenous nations, groups, communities, and organizations and displays information pertaining to their potential or established Aboriginal or treaty rights.

   This system can also provide contact information for Indigenous nations, groups, communities, and organizations in a proposed project area which may assist in assessing local business and labour capacity. Users can search this information by:

   • • Using the text or location search feature by entering the name of an Aboriginal community or organization, or other keywords (e.g. treaty, agreement,  claim, assertion, band number, place name, postal code, map coordinates, etc.) to find the appropriate information;
   • • Using one of the interactive map tools to define a search area (e.g. polygon, line or shape); and clicking  “search by drawn shape”; or
   • • Selecting types of information in the content and legend tabs to display selected features and layers as a highlighted area on the interactive map.

   ATRIS can be accessed at the following website address: Aboriginal and Treaty Rights Information System (ATRIS).

9. For procurements that may be subject to Modern Treaties/CLCAs , contracting officers should first review section 9.35 Modern Treaties, and consider contacting the Indigenous Procurement Policy Directorate (IPPD), at TPSGC.PAContratsNunavut-APNunavutContracts.PWGSC@tpsgc-pwgsc.gc.ca for assistance.
   1. To expedite requests, when requesting assistance from IPPD, contracting officers should provide the following information about their procurements:
      1. a brief description of the requirement;
      2. final delivery location(s), e.g. postal code or map coordinates;
      3. applicable Modern Treaties/CLCAs;
      4. name of client department;
      5. applicable trade agreements, and/or reasons for exclusion from any trade agreements;
      6. type of procurement instrument, e.g. contract, standing offer, supply arrangement;
      7. solicitation method (competitive or sole source);
      8. method of advertising e.g. the Government Electronic Tendering Service (GETS), source list;
      9. estimated dollar value;
      10. anticipated date of issuance of solicitation.
   2. When requesting advice, contracting officers should do so as early as possible because (1) of the possible need for IPPD to consult with others (i.e. Legal Services, Crown Indigenous Relations and Northern Affairs Canada (CIRNAC) and/or Indigenous Services Canada (ISC), Treasury Board Secretariat) before responding to a request, but mainly because (2) Modern Treaties contain obligations that impact federal procurement activities.
   3. For PSPC contracting officers, the primary source of policy advice on Modern Treaties, as well as any other type of Indigenous benefits, is IPPD. If it is necessary to involve Legal Services or CIRNAC/ISC, IPPD will assist in this process in order to ensure a consistent departmental approach.
10. When conducting contracting activities within modern treaty areas, departments are expected to keep adequate records to demonstrate that they have met Canada’s obligations set out in the Agreements. These Agreements form part of the treaty rights that are protected in Section 35 of the Constitution Act, 1982.
11. It is the responsibility of the technical authority and the contracting authority to fulfill the obligations of all applicable modern treaties at all stages of the procurement process, and document the procurement file accordingly.

9.35.5 Modern Treaties in effect

Effective date: 2024-04-19

1. At present, there are 25 Modern Treaties/CLCAs that have been given Royal Assent and are in effect. Modern treaties affecting federal government procurement exist for areas within the Yukon, the Northwest Territories, Nunavut, northern Quebec, northern Labrador and British Columbia. There are currently no Modern Treaties/CLCAs for areas within Alberta, Saskatchewan, Manitoba, Ontario, New Brunswick, Newfoundland, Nova Scotia or Prince Edward Island.
2. The Modern Treaties/CLCAs that are in effect are listed below along with their approximate settlement areas. Where available, a link has been provided to the associated Treasury Board Contracting Policy Notice, which includes an excerpt of the CLCA contracting provisions. Otherwise, a link has been provided to a page on the Crown-Indigenous Relations and Northern Affairs Canada website, which links to a full text copy of each of the comprehensive land claims agreements. References to the CLCA articles regarding contracting provisions are also included below.

9.35.5.1 Quebec

Effective date: 2024-04-19

1. James Bay and Northern Quebec Agreement (JBNQA) (1975), amended to include the Northeastern Quebec Agreement (1978): from the shores of James Bay and Hudson Bay to Labrador, covering approximately 50 percent of Quebec's land mass, mainly the northern portion of the province. The JBNQA has three Aboriginal signatories, representing the Cree, Inuit and Naskapi of Quebec. The JBNQA contains conditions that apply to both the Cree and Inuit, as well as conditions that apply solely to the Cree, conditions that apply solely to Inuit, and conditions that apply solely to the Naskapi. The Nations map shows which communities are inhabited by Cree, Inuit and Naskapi, and therefore which conditions would apply. For communities not detailed on this map, contracting officers should seek assistance in accordance with section 9.35.1 General Information on Modern Treaties (Comprehensive Land Claims Agreements), g.
   1. Inuit Provisions:
      1. James Bay and Northern Quebec Agreement (JBNQA), section 29.0 (Inuit Economic and Social Development);
      2. Agreement Respecting the Implementation of the JBNQA - Annex A, Part II (Inuit Employment and Contract Priority).
   2. Cree Provisions: James Bay and Northern Quebec Agreement, section 28.10 (Cree Participation in Employment and Contracts).
2. Northeastern Quebec Agreement, Section 18 and paragraph 20.20.
3. Nunavik Inuit Land Claims Agreement (2008) - see Article 13 – Government of Canada Employment and Contracts and, if applicable, Article 20 – Archaeology (Part 20.7): The settlement areas of the Eeyou Marine Region Land Claims Agreement (EMRLCA) and the Nunavik Inuit Land Claims Agreement (NILCA) overlap and are located within the islands and the marine waters along the Quebec shore in the James Bay and south-eastern Hudson Bay. They are within the boundaries of the Nunavut Territory, but outside the settlement area of the Nunavut Land Claims Agreement.
4. Eeyou Marine Region Land Claims Agreement (2011) - see Chapter 21 - Government Employment and Contracting and, if applicable, Chapter 26 – Archaeology (section 26.8 – Employment and Contracting): The settlement areas of the EMRLCA and the NILCA overlap and are located within the islands and the marine waters along the Quebec shore in the James Bay and south-eastern Hudson Bay. They are within the boundaries of the Nunavut Territory, but outside the settlement area of the Nunavut Land Claims Agreement.

9.35.5.5 Newfoundland and Labrador

Effective date: 2019-12-12

Labrador Inuit Land Claims Agreement (2005) - Appendix A of TB CPN 2006-4: Part of Northeastern Quebec and part of Northern Labrador. Includes (but is not limited to) Hopedale, Makkovik, Nain, Postville and Rigolet.

9.35.5.10 Northwest Territories

Effective date: 2019-12-12

1. The Inuvialuit Final Agreement (1984): the islands and part of mainland along the Beaufort Sea (northwest portion of the Northwest Territories, including western portion of Victoria Island, all of Banks Island, Prince Patrick Island in the northern portion, and the western portion of Melville Island) includes (but is not limited to) Aklavik, Holman, Inuvik, Mould Bay and Tuktoyaktuk. The Gwich'in Comprehensive Land Claims Agreement also covers Inuvik and Aklavik.
2. Gwich'in Comprehensive Land Claims Agreement (1992): parts of northeastern Yukon and northwest portion of the Northwest Territories includes (but is not limited to) Aklavik, Fort McPherson, Inuvik and Tsiigetchic. The Inuvialuit Final Agreement also covers Inuvik and Aklavik. A Yukon Transboundary Agreement, for the Tetlit Gwich'in claimant group, exists as Appendix C under this final agreement. Notification of procurement opportunities for both the Gwich'in CLCA and the Yukon Transboundary Agreement must be sent to the Gwich'in Tribal Council.
3. Sahtu Dene and Metis Comprehensive Land Claims Agreement (1994) - see Chapter 12 - Economic Measures: Northwestern part of the District of Mackenzie, including the communities of Colville Lake, Deline, Norman Wells, Fort Good Hope, and Tulit'a.
4. Tlicho Land Claims Agreement (2005) - Appendix B of TB CPN 2006-4: Part of the Northwest Territories and part of Western Nunavut. Includes, but is not limited to, Yellowknife, Behchoko (Rae-Edzo), Gameti (Rae Lakes), Wha Ti and Wekweti.

9.35.5.15 Nunavut

Effective date: 2019-12-12

Nunavut Land Claims Agreement (1993): Northern Canada - includes districts of Franklin (central Nunavut), Keewatin (south-central Nunavut, northwest coast of Hudson's Bay area), Baffin Island (southeast portion of Nunavut) and Ellesmere Island (northern portion of Nunavut). Includes (but is not limited to) Arctic Bay, Arviat, Baker Lake, Bathurst Inlet, Cambridge Bay, Canadian Forces Station (CFS) Alert, Cape Dorset, Chesterfield Inlet, Clyde River, Eureka, Gjoa Haven, Grise Fiord, Hall Beach, Igloolik, Iqaluit, Kimmirut, Kugluktuk, Nanisivik, Pangnirtung, Pelly Bay, Pond Inlet, Qikiqtarjuaq, Rankin Inlet, Repulse Bay, Resolute, Sanikiluaq, Taloyoak, Umingmaktok and Whale Cove.

9.35.5.15.1 Directive on Government Contracts, Including Real Property Leases, in the Nunavut Settlement Area

Effective date: 2024-04-19

1. To further support the Government of Canada in fulfilling its obligations under Article 24 (Government Contracts) of the Nunavut Agreement, the government issued the new Treasury Board Directive on Government Contracts, Including Real Property Leases, in the Nunavut Settlement Area (the Directive), which can be accessed here: Directive on Government Contracts, Including Real Property Leases, in the Nunavut Settlement Area.
2. The Directive prescribes procurement measures designed to provide support and assistance to Inuit firms to compete for government contracts, including the supply of goods, services, construction services and real property leases. The Directive also requires bid evaluation criteria related to Inuit and Nunavut Benefits in certain circumstances.
3. A government-wide guide titled Guide on Government Contracts in the Nunavut Settlement Area (the Guide) has been developed to assist contracting authorities and technical authorities to fulfill the obligations of the Directive. The Guide can be accessed here: Guide on Government Contracts in the Nunavut Settlement Area.
4. Treasury Board guidelines for reporting on procurement contracts and related benefits in the Nunavut Settlement Area in accordance with the Directive have been developed to assist contracting authorities and technical authorities, and can be accessed here: Guidelines on Reporting of Procurement Contracts for the Treasury Board Directive on Government Contracts, Including Real Property Leases, in the Nunavut Settlement Area (accessible only on the Government of Canada network).
5. There are supplementary templates (Inuit Benefits Plan (IBP), IBP Evaluation, and IBP Progress Report) and an IBP Holdback clause (referenced in the SACC Manual clauses and the Standard Procurement Templates) that must be applied to procurements subject to the Directive. Contracting authorities and clients are not obligated to use the templates, however, they can be helpful in structuring solicitation materials. For each new procurement, the most up-to-date version of the supplementary templates and IBP Holdback clause may be obtained from IPPD.
6. For the most up-to-date version of the IBP Holdback clause and supplementary templates, or for general advice and guidance on procurements subject to the Directive, send an email to: tpsgc.pacontratsnunavut-apnunavutcontracts.pwgsc@tpsgc-pwgsc.gc.ca. To expedite their requests, contracting authorities should provide the basic file information identified in section 9.35.1.i.i General information on modern treaties (Comprehensive Land Claim Agreements) of the Supply Manual.

9.35.5.20 Yukon

Effective date: 2024-04-19

1. Umbrella Final Agreement – Council for Yukon Indians (1993): This agreement provides a framework for the negotiation of agreements with Yukon First Nations and has so far resulted in the eleven CLCAs listed below.

   The general contracting obligations of each Yukon First Nation CLCA are contained in Chapter 22 – Economic Development Measures (section 22.5.0 - Contracting), and these obligations are fully addressed in the guidance provided within section 9.35 Modern Treaties of the Supply Manual. Access provisions are contained in Chapter 6 – Access (section 6.4.0 - Government Access) of each Yukon First Nation CLCA.

   More specific contracting obligations which apply to only certain procurements relating to special management areas (e.g. wildlife areas, parks, historic sites), heritage resources, surveying of settlement land boundaries or areas, or forest resources may be contained in:

   1. Chapter 10 – Special Management Areas;

   2.  Chapter 13 – Heritage (section 13.12.0 – Economic Opportunities);

   3. Chapter 15 – Definition of Boundaries and Measurement of Areas of Settlement Land (section 15.7.0 – Employment and Economic Opportunities); and

   4. Chapter 17 – Forest Resources (section 17.14.0 - Economic Opportunities)

   of each Yukon First Nation CLCA. Contracting officers with these types of procurements are encouraged to seek assistance in accordance with section 9.35.1 - General information on Modern Treaties (Comprehensive Land Claims Agreements), g.
2. The Agreements that can be found under the Umbrella Final Agreement – Council for Yukon Indians (1993):
   1. First Nation of Nacho Nyak Dun Final Agreement (1995): Part of Yukon Territory covering Mayo and Stewart Crossing.
   2. Champagne and Aishihik First Nations Final Agreement (1995): Part of Yukon Territory covering Haines Junction, Canyon Creek and Champagne.
   3. Teslin Tlingit Council Final Agreement (1995): Part of Yukon Territory covering Teslin.
   4. Vuntut Gwitchin First Nation Final Agreement (1995): Part of Yukon Territory covering Old Crow.
   5. Selkirk First Nation Final Agreement (1997): Part of Yukon Territory covering Pelly crossing.
   6. Little Salmon/Carmacks First Nations Final Agreement (1997): Part of Yukon Territory covering Carmacks.
   7. Tr'ondëk Hwëch'in Final Agreement (1998): Part of Yukon Territory covering Dawson City.
   8. Ta'an Kwach'an Council Final Agreement (2002): Part of Yukon Territory covering Whitehorse.
   9. Kluane First Nation Final Agreement (2004): Part of Yukon Territory covering Burwash Landing.
   10. Kwanlin Dun First Nation Final Agreement (2005): Part of Yukon Territory covering Whitehorse.
   11. Carcross/Tagish First Nations Final Agreement (2005): Part of Yukon Territory covering Carcross and Tagish.

9.35.5.25 British Columbia

Effective date: 2023-06-08

1. Nisga’a Final Agreement (2000) –This agreement does not contain any direct measures related to procurement obligations, however this agreement does contain provisions related to access to land in Chapter 6. Nisga’a settlement area is located in the Nass River valley of northwestern British Columbia.
2. Tsawwassen First Nation Final Agreement (2009) –This agreement does not contain any direct measures related to procurement obligations, however this agreement does contain provisions related to access to land in Chapter 7. Tsawwassen settlement area is located south of Vancouver.
3. Maa-nulth First Nations Final Agreement (2011) – See Section 23.10.5 regarding the Pacific Rim National Park Reserve. While the final agreement does not include any direct measures related to procurement obligations, it references the Agreement Between Canada and Maa-nulth First Nations of Pacific Rim Concerning Cooperation in the Planning and Management of Pacific Rim National Park Reserve. This side agreement contains procurement obligations, found in Section 12, for contracts related to development and operation of Pacific Rim. The Pacific Rim National Park Reserve is on the Western Coast of Vancouver Island.
4. Tla’amin Nation Final Agreement (2016) –This agreement does not contain any direct measures related to procurement obligations, however this agreement does contain provisions related to access to land in Chapter 5. Tla’amin settlement area is located on British Columbia’s Sunshine Coast, just north of Powell River, and includes Harwood Island.

9.35.10 National Park Agreements and Department of National Defence Co-operation Agreements

Effective date: 2024-04-19

1. Contracting officers should also be aware that a number of National Park Agreements and DND Co-operation Agreements have been signed between individual departments and certain Indigenous groups. These agreements, which are listed below can be found in sections 7 to 10 of TBS Contracting Policy Notice 1997-8:
   1. Section 7: Agreement for the Establishment of a National Park on Banks Island
   2. Section 8: Tuktut Nogait National Park Agreement
   3. Section 9: Co-operation Agreement between the Inuvialuit Regional Corporation and the Department of National Defence concerning the Operation and Maintenance of the North Warning System
   4. Section 10: Co-operation Agreement between the Inuvialuit Regional Corporation and the Department of National Defence concerning the Restoration and Clean-up of DEW Sites within the Inuvialuit Settlement Region
2. When advised by the client department, PWGSC will consider these co-operation agreements in the procurement process.

9.35.15 Comprehensive Land Claims Agreements under negotiation

Effective date: 2024-04-19

If contracting officers or clients are aware that a procurement will be occurring in a location subject to an ongoing Land Claim, or an area for which a CLCA or Modern Treaty is being negotiated, the contracting officer/client should contact the Indigenous Procurement Policy Directorate for advice and guidance, by sending an email to TPSGC.PAContratsNunavut-APNunavutContracts.PWGSC@tpsgc-pwgsc.gc.ca.

9.35.20 Applicability of Comprehensive Land Claims Agreement contracting obligations

Effective date: 2014-11-27

1. If a procurement, or a portion thereof, includes the final delivery of goods, services, and/or construction, for any department, agency or Crown corporation of the federal government, to locations covered by CLCAs, then the contracting obligations of each applicable CLCA will apply to each associated portion of the procurement. The final delivery point(s), which are not necessarily the destination addresses detailed in the requisition, determine the applicability of a CLCA, not the origin of the requisition (i.e. ordering office).
2. There are additional cases where the CLCA procurement obligations may apply, for example:
   1. where a procurement is in support of government activities within a CLCA area; and
   2. where a procurement involves the performance of services or associated travel by the resulting contractor within a CLCA area.
   In such cases, contracting officers should seek assistance on whether CLCAs apply in accordance with subsection g. of section 9.35.1.
3. Dollar Thresholds: A CLCA applies to any applicable procurement, regardless of dollar value.
4. Overlaps: Some CLCAs have settlement areas that overlap with the settlement areas of other CLCAs . In these cases, the obligations of both CLCAs will apply. For example, Inuvik, Northwest Territories (NWT) is situated within the settlement areas of both the Inuvialuit Final Agreement and the Gwich'in CLCA, and so the contracting obligations of both CLCAs will apply to the portion of the procurement with deliveries to Inuvik, NWT.
5. Urgent requirements must continue to be dealt with on a case-by-case basis, in a manner that is consistent with the provisions of the applicable CLCA. For procurements that are for pressing emergencies as defined in accordance with Treasury Board Secretariat Contracting Policy Notice 2007-4 on Non-Competitive Contracting, contracting officers should seek assistance in accordance with subsection g. of section 9.35.1.
6. CORCAN: Procurements that are sourced through CORCAN as stores transfer orders are not subject to CLCAs.
7. Here are some examples of requirements where CLCAs would apply to the procurement:
   1. Generators for delivery to Yellowknife, Northwest Territories.
   2. Food for delivery by the contractor to a non-CLCAarea, for furtherance by the client department to a CLCA area.
   3. Snowmobiles for delivery by the contractor to a non-CLCA area, where the client department would install decals to the snowmobiles and then ship them to Kuujjuaq, Quebec.
   4. An on-line map selection solution that would allow prospectors to acquire mineral claims on Crown lands in Nunavut, where the service would be made available to interested companies via the internet, and the technical infrastructure and hosting environment would be located in a non-CLCA area.
   5. An aeromagnetic survey to be performed on a CLCA area, with the only tangible deliverable being a final report to be sent to the client in a non-CLCAs area.

9.35.25 Requirements definition

Effective date: 2013-11-06

1. Under several CLCAs, the requirements definition for a procurement must, whenever it is practical and consistent with sound procurement management:
   1. avoid artificially inflated employment skills requirements (this is consistent with PWGSC's procurement principles);
   2. give consideration to separating requirements into commodity or geographic groupings to permit smaller and more specialized firms to submit a bid/offer/arrangement.
2. For instance, the Nunavut Land Claims Agreement states the following:

   "24.4.2 In inviting bids on government contracts in the Nunavut Settlement Area, the Government of Canada and the Territorial Government shall provide all reasonable opportunities to Inuit firms to submit competitive bids, and, in doing so, shall take, where practicable and consistent with sound procurement management, the following measures:

   1. set the date, location, and terms and conditions for bidding so that Inuit firms may readily bid;
   2. invite bids by commodity groupings to permit smaller and more specialized firms to bid;
   3. permit bids for goods and services for a specified portion of a larger contract package to permit smaller and more specialized firms to bid;
   4. design construction contracts in a way so as to increase the opportunity for smaller and more specialized firms to bid; and
   5. avoid artificially inflated employment skills requirements not essential to the fulfillment of the contract."
3. The following CLCAs also contain similar wording:
   1. James Bay and Northern Quebec Agreement (Inuit portion);
   2. Sahtu Dene and Metis Comprehensive Land Claim Agreement (Implementation Plan);
   3. Labrador Inuit Land Claims Agreement;
   4. Nunavik Inuit Land Claims Agreement; and
   5. Eeyou Marine Region Land Claims Agreement.
4. Contracting officers must also ensure that the procurement file contains adequate documentation on the measures taken to address any CLCA procurement obligations related to requirements definition.

9.35.30 Access to Comprehensive Land Claims Agreements Lands

Effective date: 2024-04-19

Comprehensive Land Claims Agreements (CLCAs) often make provisions for access to certain lands. Contracting officers and clients should contact the Indigenous Procurement Policy Directorate (tpsgc.pacontratsnunavut-apnunavutcontracts.pwgsc@tpsgc-pwgsc.gc.ca) to determine whether the location of the contracting activity is subject to access provisions under the CLCA, and, if so, whether any access permits are required.

9.35.35 Notification of procurement

Effective date: 2024-04-19

1. The most common obligation is the notification of the procurement to the land claimant group(s). The following information details the Public Works and Government Services (PWGSC) Acquisitions Program procedures for Comprehensive Land Claims Agreements (CLCAs) notification.
2. Contracting officers must fax or email a copy of a notice describing the procurement to the land claimant group(s) listed for each of the CLCAs that apply to the procurement, as detailed in Annex 9.2 Notification of Procurement to CLCA Claimant Groups, and in accordance with the following paragraphs:
   1. Any notice that will be posted on the Government Electronic Tendering Service (GETS) must be sent to the applicable land claimant group(s) on the date of posting and must indicate that CLCAs apply. This procedure applies to all types of notices, for example:
      1. Notices of Proposed Procurement (NPPs);
      2. Advance Contract Award Notices (ACANs);
      3. Letters of Interest (LOIs);
      4. Price and Availability (P&A) enquiries.
   2. For procurements that will not be posted on GETS, contracting officers must send the applicable land claimant group(s) a notice about the procurement, containing the same information that an NPP, ACAN, LOI, or a P&A enquiry would have contained. In such cases, contracting officers should allow the land claimant group(s) at least 15 calendar days to submit any enquiries before awarding a contract, although the CLCAs do not specify any waiting period.
   3. Contracting officers must notify the applicable land claimant group(s) of all procurements, regardless of the procurement instrument used. These include, but are not limited to, the following:
      1. Request for Quotations (RFQs);
      2. Requests for Proposals (RFPs);
      3. Requests for Standing Offers (RFSOs);
      4. Requests for Supply Arrangements (RFSAs);
      5. Solicitations under Supply Arrangements; and
      6. Calls for Proposals.
   4. Notification of the procurement to the land claimant group(s) is not required for individual call-ups against a standing offer. Notification at the RFSO stage is sufficient.

9.35.40 Right of First Refusal

Effective date: 2013-11-06

1. Dependent upon the requirement, competition for a procurement may be restricted to businesses of the applicable CLCA.
2. For example, for the Inuit portion of the James Bay and Northern Quebec Agreement, the Agreement Respecting the Implementation of the JBNQA, Annex A (Inuit Employment and Contract Priority), Part II states: "8.1 Wherever practicable and consistent with sound procurement management, Canada will first solicit bids from within the Territory." WHERE "3.11 "Territory" means the area in the province of Quebec north of the 55 ^th parallel of latitude, as delineated in the JBNQA."
3. Furthermore, certain agreements contain a "right of first refusal" for the provision of certain commodities, i.e., business opportunities and ventures that are contracted out with respect to Parks and the right of first refusal to any new licenses to carry on economic activities related to wildlife and tourism.
4. Other agreements make provisions for giving CLCA beneficiaries "first consideration or first priority" in sourcing certain requirements, i.e., silviculture services, management of designated heritage sites, and first consideration in providing technical and support services for contracts related to surveying the land claims settlement area.
5. Contracting officers with CLCA procurements related to archaeology, forestry, heritage, parks, and/or surveying should seek assistance in accordance with subsection g. of 9.35.1 General information on Comprehensive Land Claims Agreements.

9.35.45 Evaluation criteria

Effective date: 2024-04-19

1. Several Comprehensive Land Claims Agreements (CLCAs) contain provisions requiring the inclusion of socio-economic evaluation criteria in the solicitation document, whenever it is practical and consistent with sound procurement management. Such measures are not prohibited by Canada’s international trade agreements (see 9.35.70 International Trade Agreements). The purpose of including socio-economic evaluation criteria is to increase the opportunities for CLCA beneficiaries to experience benefits from the procurement such as:
   1. Subcontracting to Land Claim Beneficiary Businesses
   2. Employment opportunities for Land Claim Beneficiaries
   3. Training/skills development for Land Claim Beneficiaries
   4. Existence/establishment of a supplier office location within the CLCA area
2. The document excerpts in Annex 9.3: Comprehensive Land Claims Agreements evaluation criteria specifically detail that consideration of socio-economic evaluation criteria is required for the following CLCAs:
   1. James Bay and Northern Quebec Agreement - Inuit Portion
   2. Inuvialuit Final Agreement
   3. Nunavut Land Claims Agreement
   4. Sahtu Dene and Métis Comprehensive Land Claims Agreement
   5. Tlicho Land Claims Agreement
   6. Nunavik Inuit Land Claims Agreement
   7. Labrador Inuit Land Claims Agreement
   8. Eeyou Marine Region Land Claims Agreement
   In addition, solicitations subject to the Gwich'in Comprehensive Land Claims Agreement should include socio-economic evaluation criteria for the Gwich'in, whenever it is practical and consistent with sound procurement management. Canada's international trade agreements pose no impediment to such measures.
3. These evaluation criteria can be used as part of the assessment along with price, best value, delivery etc. Proof of efforts and/or commitments made by suppliers should include, but not be limited to, the names of persons or companies contacted and the nature of the undertakings at the time of the submission and as applicable.
4. Should the contracting officer decide that it is not practical and consistent with sound procurement management to include the CLCA evaluation criteria in a solicitation document, the contracting officer must document the supporting factors leading to this decision on the procurement file, preferably in the Contract Planning and Advance Approval (CPAA) document or procurement plan.
5. The CLCA evaluation criteria should also be considered in sole source negotiations in order to maximize socio-economic opportunities for CLCA beneficiaries.

9.35.50 Methods of solicitation

Effective date: 2010-01-11

Contracting officers must use the appropriate method of solicitation, i.e., the Government Electronic Tendering Service (GETS), telephone-buys, source lists, facsimile distribution, newspapers, or a combination of methods. Increased consideration should be given to advertising the procurement opportunity in local newspapers and/or other public venues due to the remoteness of some of the areas.

9.35.55 Solicitation period

Effective date: 2010-01-11

A longer bidding period should be considered depending on the remoteness of some of the areas.

9.35.60 Business directories or lists

Effective date: 2024-04-19

1. Under several modern treaties/CLCAs , the land claimant groups have to prepare and maintain lists of modern treaty/CLCA beneficiary firms. The business directories/lists identify the types of the goods and services the firms can furnish.
2. For procurements posted on GETS, contracting officers should notify the modern treaty/CLCA beneficiary firms listed for the applicable commodities, in accordance with 4.75.35 Contacting suppliers directly during the solicitation period. For procurements not posted on GETS, contracting officers should use the firm lists to invite modern treaty/CLCA beneficiaries firms to submit a bid/offer/arrangement; this must not restrict the ability of any business, not on the list, to submit a bid/offer/arrangement.
3. For a list of Inuit businesses for the James Bay and Northern Quebec Agreement and for the Nunavik Inuit Land Claims Agreement, consult the Makivvik Business website.
4. For a list of Cree businesses for the James Bay and Northern Quebec Agreement, consult the Grand Council of the Crees business directory.
5. For a list of Naskapi businesses in the Northeastern Quebec Settlement Area, consult the Naskapi Business Directory
6. For a list of Inuvialuit businesses in the Inuvialuit Settlement Region, consult the Inuvialuit Business List.
7. For a list of Gwich'in businesses in the Gwich'in Settlement Area, consult the Gwich'in Business Directory.
8. For a list of Inuit businesses in the Nunavut Settlement Area, consult the Inuit Firm Registry.
9. For more information on Tlicho businesses, visit the Tlicho Business website.
10. For a list of Inuit businesses in the Labrador Inuit Settlement Area, consult the Nunatsiavut Government's Business Directory page.
11. For a list of Kwanlin Dun First Nation businesses, consult the Kwanlin Dun Business Listings website.
12. For a list of Na-Cho Nyak Dun businesses, consult the Na-Cho Nyak Dun Development Corporation Businesses and Partnerships website.
13. For a list of Tsawwassen First Nations businesses, consult the Tsawwassen Business Directory website.
14. For a list of Maa-nulth First Nations businesses, consult the following Maa-nulth First Nations business websites
    1. Huu-ay-aht First Nations
    2. Ka:’yu:’k’t’h’/Che:k’tles7et’h First Nations
    3. Toquaht Nation
15. Items (c) through (n) above do not represent an exhaustive inventory of Modern Treaty/CLCA land claimant business lists. Other, unidentified Modern Treaty/CLCA land claimant business lists may exist, and in certain circumstances the contracting officer may consider such lists for the purposes of ensuring Modern Treaty/CLCA beneficiary firms are eligible to participate in a federal procurement. Contracting officers are advised to contact the Indigenous Procurement Policy Directorate (tpsgc.pacontratsnunavut-apnunavutcontracts.pwgsc@tpsgc-pwgsc.gc.ca) or Indigenous Services Canada (indigenousprocurement@sac-isc.gc.ca) for assistance.
16. If any links included within this section are found to be non-functional or out of date, please notify the Indigenous Procurement Policy Directorate by sending an email to tpsgc.pacontratsnunavut-apnunavutcontracts.pwgsc@tpsgc-pwgsc.gc.ca.

9.35.65 Comprehensive Land Claims Agreements and Procurement Strategy for Indigenous Business

Effective date: 2022-05-12

1. Comprehensive Land Claims Agreements (CLCAs) must not be confused with the Procurement Strategy for Indigenous Business (PSIB). For more information on PSIB, see section 9.40 Procurement Strategy for Indigenous Business.
2. In certain cases, a procurement subject to CLCA contracting obligations may also be set-aside under PSIB. The procedures for both CLCAs and PSIB set-asides can be applied to the extent that the application of a PSIB set aside does not interfere with CLCA contracting obligations. However, when the two are in conflict, the CLCA contracting obligations take precedence, as further explained below.
3. If a procurement is subject to a CLCA and that CLCA does not include a right of first refusal, the procurement can be reserved for aboriginal businesses across Canada under PSIB while still addressing the CLCA contracting obligations, including any CLCA evaluation criteria.
4. The act of setting aside a procurement under PSIB does not, by itself, address the CLCA procurement obligations. The various procurement obligations of the applicable CLCA will still have to be considered.
5. A solicitation subject to a PSIB set-aside that addresses CLCA evaluation criteria must clearly define what constitutes a CLCA beneficiary to avoid confusion with the definition of "Indigenous business" under PSIB.
6. If a procurement is reserved for CLCA beneficiaries because of a right of first refusal under that CLCA, the procurement cannot also be set-aside under PSIB. For these situations, the PSIB clauses cannot be used or modified to implement the CLCA right of first refusal. Instead, seek assistance in accordance with paragraph g.i. of section 9.35.1 General information on Comprehensive Land Claims Agreements.
7. To help identify sourcing capacity under a PSIB set-aside, refer to 9.40.35 Sourcing of requirements under Procurement Strategy for Indigenous Business (PSIB) set-asides. As with all procurements, every reasonable effort must be made to satisfy operational requirements while obtaining best value and taking into account the principles of prudence, probity and sound contracting management.

9.35.70 International trade agreements

Effective date: 2024-04-19

1. There are mechanisms in all international trade agreements that permit Canada to include measures, including but not limited to set-asides, for the benefit of Indigenous Peoples and/or businesses in a procurement. This includes procurement obligations pursuant to Modern Treaties (Comprehensive Land Claims Agreements). For more information on trade agreements, see 1.25.1 International and national trade agreements, 1.25.2 General principles of trade agreements, and 1.25.3 Determining coverage under a trade agreement.
2. If a set-aside or an exception is made use of or relied upon (e.g. any measure adopted or maintained with respect to Aboriginal Peoples, set-aside for minority businesses, etc.), some or all aspects of the procurement may not be subject to certain trade agreement obligations. In such cases, in order to reduce risk, contracting officers should continue to follow the obligations of the trade agreements to the greatest extent possible, deviating only where necessary to serve the purpose(s) for which the exception is being used or the set-aside is being applied.

9.35.75 Canadian Free Trade Agreement

Effective date: 2024-04-19

Under Article 800: Aboriginal Peoples of the Canadian Free Trade Agreement (CFTA), the CFTA does not apply to any measure adopted or maintained with respect to Indigenous Peoples. If a measure is adopted or maintained with respect to Indigenous Peoples and/or businesses in a CFTA-covered procurement, some or all aspects of the procurement may not be subject to CFTA obligations. In order to reduce risk, contracting officers should continue to follow the obligations of the CFTA to the greatest extent possible, deviating only where necessary to implement the measure(s) for Indigenous peoples/businesses.

9.35.80 Notices on the Government Electronic Tendering Services

Effective date: 2024-04-19

1. For procurements subject to CLCAs, contracting officers must insert a statement in the notice on the Government Electronic Tendering Service (GETS), indicating the applicable CLCAs.
   For example, a notice for a procurement that is subject to the Inuvialuit Final Agreement should include the following wording:

   This procurement is subject to the Inuvialuit Final Agreement.

2. If a CLCA provides its beneficiaries with a right of first refusal for the procurement, and therefore the procurement is reserved for those CLCA beneficiaries, then the contracting officer must insert the following information in the GETS notice:

   "This procurement is reserved for beneficiaries of the following Comprehensive Land Claims Agreement (CLCA): _____(insert the applicable CLCA) under _____(insert the applicable CLCA chapter, article and paragraph numbers)."

9.35.85 Solicitations

Effective date: 2024-04-19

1. Clauses W0001T to W0003D in Subsection 5.W of the Standard Acquisition Clauses and Conditions (SACC) Manual, have been developed for solicitations, contracts and standing offers that involve unspecified final delivery locations within land claims settlement areas.
2. Although additional CLCA clauses are available in Subsection 5.W of the SACC Manual, contracting officers should seek assistance with these clauses in accordance with subsection g. of 9.35.1 General information on Modern treaties (Comprehensive Land Claims Agreements).

9.35.90 Standing offers, supply arrangements and as-and-when-requested contracts

Effective date: 2024-04-19

1. Methods of supply such as standing offers (SOs), supply arrangements (SAs), and as-and-when-requested contracts are also affected by Comprehensive Land Claims Agreements (CLCAs) if any of the resulting contracts or tasks may be subject to CLCAs. Therefore, during the procurement planning stage, contracting officers must determine, in consultation with client departments, whether such a method of supply will need to provide for CLCAs. Examining past, present and future needs will help determine a solution that is of mutual benefit to Public Works and Government Services Canada supply divisions and their client departments.
2. When such a method of supply will need to provide for CLCAs, various options exist:
   1. an instrument that provides for both CLCA areas and non-CLCA areas;
   2. two streams of instruments - one for CLCA areas and one for non-CLCAs; or
   3. multiple streams for various geographic or CLCA areas.
3. If an instrument will provide for CLCAs , the applicable CLCA procurement obligations must be addressed at the RFSO/RFSA/RFP stage of the instrument. For supply arrangements, the CLCA procurement obligations also have to be addressed when issuing any bid solicitation under the SA that may be subject to CLCAs.
4. During the planning stage of the method of supply, if it is determined that either no or few resulting contracts or tasks will be subject to CLCAs, then it may be more appropriate to issue an instrument that does not provide for CLCAs. In this case, the contracting officer must include a clear statement in the instrument detailing that deliveries cannot be made and services cannot be performed within CLCA settlement areas under any resulting contract or task authorization (Standard Acquisition Clauses and Conditions Manual clause W0002 may be used for these purposes). If later on, the client has a specific requirement that is subject to CLCAs , and no instrument exists which addressed the obligations of the applicable CLCAs, that requirement will have to be handled as a new procurement, outside any existing instrument.
5. Mandatory SOs/SAs: if a client's requirement is subject to CLCA contracting obligations, and no mandatory SO/SA exists which addresses the obligations of the applicable CLCA(s), the client department is exempted from having to use the mandatory SO/SA.
6. Furthermore, with respect to the Procurement Strategy for Indigenous Business, refer to 9.40.35 c.

9.35.91 SELECT

Effective date: 2024-04-19

1. SELECT is a database of pre-approved suppliers such as architects, engineers and construction trade contractors identified by their expertise and the services they provide. It is used by Public Works and Government Services Canada (PWGSC) to invite suppliers to bid on real property services procurements up to certain thresholds. SELECT provides a systematic rotation functionality that matches the specifics of the requirement with suppliers having the required expertise that are within a geographic range. Depending on the requirement, a supplier may be given the opportunity to accept or decline the work, or multiple suppliers may be given the opportunity to compete the requirement.
2. As the procurement obligations of Comprehensive Land Claims Agreements (CLCAs) are not addressed at the pre-approval stage within SELECT, they must be addressed at the solicitation stage. Therefore when it is determined that a requirement is subject to CLCAs, and the commodity is subject to the use of SELECT, contracting officers must choose from the following options:
   1. Not use SELECT and proceed with the requirement following the process explained in section 9.35 Modern Treaties. The procurement file should be documented to state that SELECT was not used as it does not address the CLCA procurement obligations at the pre-approval stage.
      or
   2. Use SELECT, refer to section 9.35 Modern Treaties, and follow the more tailored process described below:
      1. Requirements Definition: follow the procedures detailed in section 9.35.25 Requirements definition.
      2. Access to Comprehensive Land Claims Agreements Lands: follow the procedures detailed in section 9.35.30 Access to Comprehensive Land Claims Agreements Lands.
      3. Inviting Suppliers to Bid: Invite bids from the list of firms generated by SELECT and the CLCA beneficiary firm(s) listed for the applicable commodities. See section 9.35.60 Business directories/lists for CLCA beneficiary firm lists and for additional instructions.
      4. Notification of Procurement: In accordance with section 9.35.35 Notification of procurement, provide notification to the claimant group(s) on the same day that the solicitation is issued. The following information should also be included in the notification to the claimant group(s):
         "This procurement is subject to the ______________________ {indicate the applicable CLCAs}.
         The source list for this solicitation, which is a list of pre-approved suppliers, was generated using SELECT. Suppliers that are beneficiaries of the ______________________ {indicate the applicable CLCAs} are also encouraged to bid.
         A copy of the solicitation can be obtained by contacting ______________________ {indicate the contracting officer’s name} at ______________________ {indicate telephone and e-mail address}.
         SELECT is a database of pre-approved suppliers such as architects, engineers and construction trade suppliers identified by their expertise and the services they provide. It is used by Public Works and Government Services Canada (PWGSC) to invite suppliers to bid on real property contracting opportunities.
         Firms can register at anytime by contacting the PWGSC support team at BASA-ASSD@tpsgc-pwgsc.gc.ca or calling at 1-800-811-1148. In addition, firms can register through the SELECT registration website."
      5. Bid Evaluation Criteria: Follow the procedures described in section 9.35.45 Evaluation criteria. Whenever practical and consistent with sound procurement management, include the CLCA evaluation criteria in the solicitation document. Should the contracting officer decide that it is not practical and consistent with sound procurement management to include the CLCA evaluation criteria, the contracting officer must document the supporting factors leading to this decision on the procurement file.
      6. Clause: The contracting officer must include the following clause in the solicitation document and resulting contract.
         "This procurement is subject to the following Comprehensive Land Claims Agreement(s) ______________________ {indicate the applicable CLCAs }."
      7. Procurement Reporting: Follow the procedures described in section 9.35.95 Procurement reporting for Comprehensive Land Claims Agreements to ensure that reporting on contracts subject to CLCAs is done accurately.

9.35.95 Procurement reporting for Comprehensive Land Claims Agreements

Effective date: 2013-06-27

Contracting officers must ensure that reporting on procurements subject to Comprehensive Land Claims Agreements is done accurately, in accordance with section 7.30.15 Comprehensive Land Claims Agreements reporting.

9.40 Procurement Strategy for Indigenous Business

Effective date: 2022-05-12

1. In accordance with the Procurement Strategy for Indigenous Business (PSIB) announced on March 27, 1996 and modified in August 2021, requirements designated by client departments as set aside under PSIB will be restricted to qualified Indigenous businesses.
2. Even though a procurement is set aside under PSIB, all applicable procurement policies and procedures must be followed.

9.40.1 Decision to set aside a procurement under the Procurement Strategy for Indigenous Business

Effective date: 2022-05-12

1. The decision to set aside a procurement under PSIB is the responsibility of the client department.
2. There are two types of PSIB set-asides :
   1. Mandatory Set-Asides :
      1. It is mandatory to set aside a procurement under PSIB if an Indigenous population is the primary recipient or end user of the goods or services being procured and the value exceeds $5,000, provided that operational requirements, prudence, probity, best value and sound contracting management can be assured.
      2. In order for an Indigenous population to be the primary recipient or end user of the goods or services being procured, delivery does not have to be directly to the Indigenous community. For example, goods may be delivered to a government department site and later distributed to Indigenous communities, groups or individuals.
      3. For more information and examples of what constitute a mandatory set-aside under PSIB, please contact Indigenous Services Canada (ISC) by sending an email to: indigenousprocurement@sac-isc.gc.ca
      4. Under ARCHIVED - TBS Contracting Policy Notice 1996-2,

         "Indigenous Population" means

         1. an area, or community in which Indigenous people make up at least 51 percent of the population;
         2. a group of people for whom the procurement is aimed in which Indigenous people make up at least 51 percent of the group.
   2. Voluntary Set-Asides : Client departments may designate any procurement as being restricted exclusively to qualified Indigenous suppliers. Contracting officers should assist client departments in meeting their performance objectives under the program, by drawing their attention to opportunities for voluntary PSIB set-asides, when qualified Indigenous suppliers are known to exist in the marketplace.
3. When a procurement is set aside under PSIB and no Indigenous business submitted a responsive bid/offer/arrangement, then the solicitation must be reissued, either as a set-aside once again (after the necessary adjustments to the solicitation have been made), or open to all bidders in accordance with the procedures for the applicable trade agreement(s), taking into account the relevant thresholds, and all the related applicable components, which apply to the requirement in the absence of a set-aside. This re-solicitation process will also apply when Indigenous bids/offers/arrangements are received but a contract will not be awarded in order to avoid conflicting with sound contracting principles such as best value, prudence and probity. (See 9.40.25 Sound contracting principles.)
4. PWGSC will not unilaterally declare a procurement set-aside under PSIB. However, following receipt of a requisition above $5,000, for which an Indigenous population is the primary recipient or end user, but is not designated as a PSIB set-aside, the contracting officer should contact the client department and identify the potential omission. If the client indicates that the procurement is not to be set aside under PSIB, the file should be annotated accordingly, and the procurement may then proceed.

9.40.2 Obtaining advice on the Procurement Strategy for Indigenous Business

Effective date: 2022-05-12

1. The primary source of policy advice on the Procurement Strategy for Indigenous Business (PSIB) for Public Works and Government Services Canada contracting officers is the Indigenous Procurement Policy Directorate (IPPD). Contracting officers can contact IPPD by sending an email to TPSGC.PAApprovisionAutochtone-APIndigenousProc.PWGSC@tpsgc-pwgsc.gc.ca.
2. Contracting officers should share with IPPD any advice on PSIB received from other sources before taking any action, in order to ensure a consistent approach to the implementation of PSIB. As well, any discrepancy in the information gathered by the contracting officer must be brought to the attention of IPPD. Contracting officers must document their files to include any advice received. The approval documents should include the rationale for any key decisions.

9.40.5 Procurement Strategy for Indigenous Business and Comprehensive Land Claims Agreements

Effective date: 2022-05-12

Comprehensive Land Claims Agreements (CLCAs) must not be confused with the Procurement Strategy for Indigenous Business (PSIB). For information on CLCAs, contracting officers should consult section 9.35 Comprehensive Land Claims Agreements (CLCAs). For information on how CLCAs contracting obligations and PSIB interrelate, refer to section 9.35.65 Comprehensive Land Claims Agreements and Procurement Strategy for Indigenous Business.

9.40.10 Procurement Strategy for Indigenous Business and trade agreements

Effective date: 2022-05-12

1. Canada's free trade agreements pose no impediment to the inclusion of measures for the benefit of Indigenous Peoples and/or businesses in a procurement. This includes setting aside procurements for Indigenous business under the Procurement Strategy for Indigenous Business (PSIB). If a procurement has been set-aside under PSIB, it is no longer subject to the obligations of the trade agreements and no longer falls under the jurisdiction of the Canadian International Trade Tribunal (CITT).
2. Contracting officers must insert SACC Manual clause A3002T in bid solicitations for procurements that have been set aside under PSIB, when the procurement would have been otherwise subject to one or more trade agreements.

9.40.15 Procurement Strategy for Indigenous Business and Canadian content

Effective date: 2022-05-12

1. If the value of the procurement is equal to or greater than $25,000, PSIB and the Canadian Content Policy will be applied simultaneously.
2. In applying the Canadian Content Policy under a set-aside procurement, it must be recognized that there are two levels of certification. The first level of certification will be to qualify the supplier(s) as eligible for consideration, i.e., a supplier must provide certification that it is an Indigenous business.
3. Having established that the procurement will be conducted as a PSIB set-aside, contracting officers must then apply the Canadian Content Policy in the same manner as any other procurement but in the context of the Indigenous business supplier community. Contracting officers must determine whether there are sufficient eligible firms to carry out the procurement as solely limited (i.e., two or more Indigenous businesses are able to provide Canadian goods or services), conditionally limited (i.e., there may be two or more Indigenous suppliers of Canadian goods or services), or open (i.e., there is an insufficient number of Indigenous businesses able to provide Canadian goods or services; the procurement is open to all Indigenous businesses regardless of the origin of the goods and services supplied). (See 3.130 Canadian Content Policy)
4. A bid/offer/arrangement for a set aside procurement, which includes the Canadian content provision, must be reviewed initially to determine whether the supplier has provided the necessary certificate that it is an Indigenous business. Bids/offers/arrangements meeting this basic certification are then assessed according to the stated Canadian content criteria.

9.40.20 Subcontracting plans

Effective date: 2022-05-12

In support of PSIB, client departments may designate that a proportion of subcontracts through open procurement be reserved for Indigenous business, or that non-Indigenous suppliers are to be encouraged through the use of incentives - e.g., additional evaluation points to hire Indigenous businesses as subcontractors. The inclusion of Indigenous businesses as subcontractors must be clearly identified in the solicitation as an evaluation criterion. This is permitted by all of Canada’s free trade agreements.

9.40.25 Sound contracting principles

Effective date: 2022-05-12

Fundamental to all PSIB procurements is the need to adhere to sound contracting principles. Contracting officers must always be cognizant of the principles of best value, prudence, probity, and operational requirements, in planning their procurement strategy for PSIB set-aside requirements.

9.40.30 Notification to Indigenous Services Canada

Effective date: 2022-05-12

1. Upon receipt and acceptance of a requisition for a PSIB set-aside procurement, contracting officers must inform the Business Development Directorate, Indigenous Services Canada (ISC).
2. Notification to ISC must be sent, by email, before the release of the solicitation, to:
   Indigenous Services Canada
   Business Development Directorate
   Telephone: 1-800-400-7677
   Email: indigenousprocurement@sac-isc.gc.ca.
   The notification must include the following information:
   1. estimated dollar value;
   2. description of goods/services/construction;
   3. solicitation number;
   4. solicitation closing date; and
   5. buyer (name, and phone/fax numbers).
   In instances of sole source procurements, the notice to ISC must also include the name and address of the potential contractor.
3. Within 15 working days after contract award, the contracting officer must advise the Business Development Directorate of the name of the contractor, the contract number, and the total estimated value of the contract.

9.40.35 Sourcing of requirements under Procurement Strategy for Indigenous Business (PSIB) set-asides

Effective date: 2023-03-30

1. Procurements set aside under PSIB may be competitive or non-competitive according to current established government sourcing policies (see details on competitive and non-competitive at 3.10 Competitive contracting process and 3.15 Non-competitive contracting process.) Indigenous businesses may be invited to submit a bid/offer/arrangement in accordance with Public Works and Government Services Canada (PWGSC) policies and procedures.
2. Vendor Information Management (VIM) of PWGSC and "SELECT" systems allow for the identification of suppliers that have self-declared as being Indigenous. The information in VIM and "SELECT" collected from supplier registrations and contract awards is useful to identify potential Indigenous businesses for sourcing purposes, and establish source lists, regardless of commodity (goods, services, or construction), which would be subject to rotation regimes such as Automated Vendor Rotation System or "SELECT".
3. When issuing a solicitation for a standing offer or a supply arrangement especially for a commodity falling under the mandatory commodities, the contracting officer should always, when feasible, solicit for a PSIB set-aside stream to allow client departments the possibility of contracting with Indigenous firms if they wish to do a set-aside procurement under PSIB.
4. When creating a standing offer or supply arrangement which will include both a source list for Indigenous set-asides as well as a general source list, the solicitation should clearly indicate that Indigenous suppliers who qualify for the Indigenous source list, standing offer or supply arrangement will be automatically placed on the general source list, standing offer or supply arrangement if the procurement requirements are identical. Therefore, in the case of identical requirements, it is not necessary for Indigenous suppliers to submit two separate bids/offers/arrangements.
5. Contracting officers may also access other sources, such as Indigenous Services Canada’s Indigenous Business Directory for more information on Indigenous suppliers and to identify potential Indigenous businesses which may be invited to submit a bid/offer/arrangement. Contracting officers may also contact the Business Development Directorate, ISC, directly by telephone at 1-800-400-7677, or by email at: indigenousprocurement@sac-isc.gc.ca.
6. When bids/offers/arrangements are solicited via the Government Electronic Tendering Service, notices (Notice of Proposed Procurement [NPP] or Advanced Contract Award Notice [ACAN]) must contain one of the following statement, prominently positioned, i.e., one of the first statements in the notice:

   "This procurement has been set aside under the federal government's Procurement Strategy for Indigenous Business (PSIB). In order to be considered, a supplier must certify that it qualifies as an Indigenous business as defined under PSIB and that it will comply with all requirements of PSIB." (NPP);

   OR

   "This procurement has been set-aside under the federal government's Procurement Strategy for Indigenous Business (PSIB). Only Indigenous businesses as defined under PSIB are eligible to challenge the proposed procurement strategy to award the contract to the named Indigenous business." (ACAN)

7. Contracting officers must ensure that for notices on GETS, the appropriate "Agreement Type" is selected for PSIB set-asides.

9.40.40 Legal status of Indigenous business

Effective date: 2022-05-12

The description of a business as an Indigenous business does not affect the fact that in order to create an enforceable contract with Canada, the contract must be signed between Canada and a legal entity, which has the capacity to contract. In the event any uncertainty exists concerning the legal status of an Indigenous business, contracting officers must consult with legal counsel to ensure that the proposed contractor is capable of signing an enforceable agreement.

9.40.45 Certification by suppliers

Effective date: 2022-05-12

1. For each procurement under the PSIB, suppliers will be required to provide, with their bid/offer/arrangement, a certification stating that they meet the definition of an Indigenous business, according to the definition provided, on the date that the bid/offer/arrangement was submitted, and an undertaking that the business will continue to meet this definition throughout the life of the contract.
2. For a procurement subject to a PSIB set-aside, the contracting officer must insert in the solicitation, the Standard Acquisition Clauses and Conditions (SACC) Manual clauses A3000T, M9030T or S3035T, and A3001T, M3030T or S3036T, as appropriate. These clauses reference Annex 9.4: Requirements for the Set-aside Program for Indigenous Business, which sets out the definitions of an "Indigenous business" and an "Indigenous person".
3. SACC Manual clauses A3000T, M9030T and S3035T contain a certification that suppliers must complete and submit with their bid/offer/arrangement. Failure by suppliers to submit this completed certification form with their bids/offers/arrangements will render the bid/offer/arrangement non-responsive.
4. It is not the responsibility of the contracting officer to verify the supplier's certifications. In instances where the contracting officer questions the validity of a certification, the particulars must be referred to the Business Development Directorate, Indigenous Services Canada (ISC), for audit by third party auditors. (See 9.40.50(e).)
5. Any resulting contract awarded on the basis of the supplier being Indigenous must include SACC Manual clause A3000C.

9.40.50 Audits of the bidder/offeror/supplier certification

Effective date: 2022-05-12

1. A bidder/offeror/supplier is required to certify in its bid/offer/arrangement that it is an Indigenous business, as defined under PSIB (see Annex 9.4: Requirements for the Set-aside Program for Indigenous Business.) The certification includes an undertaking that the business will continue to meet the criteria, which define it as Indigenous throughout the performance of the contract. A bidder/offeror/supplier's certification that it is Indigenous is subject to audit, both before and after contract award.
2. Pre-award audit is mandatory for requirements valued at $2M or more. To ensure that the mandatory requirement for pre-auditing is met, it is essential that the contracting officer properly notify Indigenous Services Canada (ISC) of such requirements, as per 9.40.30(b) above, and that the two best-assessed bids/offers/arrangements be submitted to ISC as per 9.40.50(f). The contracting officer must not award contracts of $2M or more until ISC has confirmed eligibility of the proposed contractor.
3. Pre-award audits of suppliers' certifications will be conducted on a random basis for requirements under $2M. ISC will advise the contracting officer whether a requirement is subject to pre-award audit no later than the date of solicitation closing (see 9.40.30(a)). Audits of suppliers' certifications are expected to require approximately 10 working days to be completed. When timing of contract award is an issue, this should be indicated in the notification to ISC, so that it may determine whether the auditing process can be expedited or the procurement excluded from the random selection.
4. Pre-award audits may be requested either by the requisitioning authority, the contracting officer, or ISC, whenever there is a doubt regarding the validity of bidders/offerors/suppliers' certifications, regardless of the total estimated expenditure of the procurement.
5. When ISC has advised that the requirement will be subject to a pre-award audit, the evaluation of bids/offers/arrangements will continue up to the point that the two "best assessed" bids/offers/arrangements have been identified. This information must be provided to ISC, minus any pricing information to undertake the pre-award audit of the bidders/offerors/suppliers' certification. Upon receipt of the results of the audit, ISC will advise the contracting officer. If the audit confirms the validity of the bidders/offerors/suppliers' certifications, award of the contract may proceed. If the audit determines that one or more of the certificates are invalid, the subject bidders/offerors/supplier(s) whose certifications have been declared invalid must be declared non-responsive, and the next-ranked bidder/offeror/supplier becomes the "recommended bidder/offeror/supplier". If the audit reveals that both certifications are invalid, the next-ranked supplier's certification must be referred to ISC for audit until either a bid/offer/arrangement with a valid certificate is obtained, or no bidders/offerors/suppliers remain. In the event that all bidders/offerors/suppliers are eliminated on the basis of invalid certifications, the solicitation must be reissued, either as a set-aside once again, or not set aside, after consultation with the client department. Whether the contract should be awarded to the next-ranked bidder/offeror/supplier, or the solicitation reissued, is a decision that must be made on a case-by-case basis, in keeping with sound contracting principles.
6. After contract award, the contractor's certification is subject to audit to confirm its status as an Indigenous business as well as to confirm that required Indigenous content is met during the life of the contract. (For more information, please contact ISC by sending an email to: indigenousprocurement@sac-isc.gc.ca.) Audits following contract award will normally be performed on a random basis, however where contracting officers believe it to be necessary, audit of the contractor's continued status as an Indigenous business may be requested of ISC.
7. If the Indigenous business certificate is declared invalid, or if the contractor has not completed its undertaking to continue to qualify as an Indigenous business, it may be necessary to implement civil or contractual remedies. Contracting officers should consult with Legal Services and Indigenous Business Directorate, ISC, in determining the appropriate action to be taken.

9.40.55 Bid challenge

Effective date: 2010-01-11

Bid challenges should be dealt with according to established internal supplier complaint response procedures for procurements not subject to trade agreements.

9.40.60 Procurement reporting for Procurement Strategy for Indigenous Business

Effective date: 2022-05-12

Contracting officers must ensure that reporting on contracts set aside under the Procurement Strategy for Indigenous Business (PSIB) is done accurately, in accordance with 7.30.20 Procurement strategy for Indigenous business reporting.

9.45 Industrial and Regional Benefits program

Effective date: 2020-05-04

1. Competition remains the cornerstone of the Canadian government procurement process. It is the most efficient way of achieving both the primary and secondary goals of procurement. It gives suppliers the incentive to bring forward their best solution to the operational problem, at a competitive price, as well as to respond more effectively to requirements in support of other national objectives. Moreover, competition ensures that all qualified suppliers are afforded access to government contracts. To this end, procurement initiatives in support of regional industrial development must, to the greatest extent possible, focus on assisting Canadian firms in becoming competitive in domestic and world marketplaces.
2. Collectively, Innovation, Science and Economic Development Canada and the regional agencies/departments are responsible for the management of industrial and regional benefits.
3. The contracting officer is responsible for the contract in all aspects, including the contractor's commitments to regional and industrial benefits that form part of the contract. Industrial and Regional Benefits (IRB) managers are responsible for the day-to-day requirements of the program, while the contracting officer is responsible for the management of the contract. Should there be any failure to complete the work contracted under the IRB Program, it would fall to the remedies section of the contract to resolve any problems. It is through this process, even though an aspect of the contract may be managed separately, that the contracting officer must remain cognizant of the IRB requirement working with IRB managers early in the program and throughout the delivery of the contract.

9.50 Communication procurement

Effective date: 2018-12-06

1. Acquisitions Branch, Public Works and Government Services Canada (PWGSC), provides all optional and mandatory procurement services related to communications to federal departments and agencies.
2. Unlike most other mainstream PWGSC procurement divisions, the Communication Procurement Directorate operates on cost recovery, charging a fee for its procurement services in the areas of advertising, public opinion research, media monitoring, printing, audio-visual production (including film, video and multi media), event management, expositions and exhibits, graphic design, planning, writing and editing, and other communications services. The fee is based on the value of the contract, the call-up or the work authorization, and any amendments that increase the value.
   For more information on communication procurement, visit the Communication Procurement Directorate (accessible only on the Government of Canada network) website.

9.55 Canadian Commercial Corporation

Effective date: 2010-01-11

This section provides information on the roles and responsibilities of Canadian Commercial Corporation (CCC) and PWGSC and the Memorandum of Understanding between PWGSC and CCC.

9.55.1 General information on Canadian Commercial Corporation contracts

Effective date: 2017-04-27

1. The CCC is a Crown corporation of the Government of Canada and acts as Canada's international contracting and procurement agency. CCC reports to Parliament through the Minister of International Trade under Schedule III Part I of the Financial Administration Act.
2. The CCC work mandate is to assist in the development of trade between Canada and other countries in areas where there is a clear role for the federal government. CCC helps foreign government buyers benefit from Canada's export capabilities through the negotiation and execution of government-to-government contracts. CCC accomplishes this by building unique relationships and maintaining international contracting and procurement expertise. For more information about CCC, contracting officers may visit the CCC website.
3. CCC focuses on sectors where there is a clear role for government: operating in sectors that are sensitive or are outside of the World Trade Organizations' disciplines, such as defence, and where foreign governments require additional capacity to undertake complex and timely procurements, namely in emerging and developing country markets.
4. CCC offers two contracting options: by selling to foreign governments, taking on the role of prime contractor with a Canadian-based supplier; and by buying for foreign governments, taking on the role of a procurement agent and sourcing Canadian goods and services.
5. By agreement, the CCC is the prime contractor on all direct United States (U.S.) government contracts (over $150,000) with Canadian-based suppliers. CCC, in turn, subcontracts with the appropriate supplier. CCC guarantees to the U.S. government all commitments, obligations and covenants of CCC in connection with any contract or order issued to them.
6. Acquisitions Program, PWGSC, provides contracting, contract management and other contract support services related to CCC requirements as presented in the Memorandum of Understanding (MOU) signed between CCC and PWGSC, a copy of which is held by PWGSC’s Price Support Directorate (PSD).

9.55.5 Subcontracting

Effective date: 2017-04-27

This section was removed from the Supply Manual as a result of a review of sections referencing the Canadian Commercial Corporation (CCC). For reference purposes, section 9.55.5 is available in the Supply Manual Archive (accessible only on the Government of Canada network), version 2016-2.

9.55.10 Memorandum of Understanding

Effective date: 2017-04-27

CCC requirements must be carried out in accordance with the Memorandum of Understanding (MOU) signed between PWGSC and CCC, which outlines the services to be provided by PWGSC and the responsibilities of both organizations. A copy of the latest version of the MOU is held by PWGSC’s Price Support Directorate (PSD).

9.55.15 Certification and signing authorities

Effective date: 2017-04-27

Specific certification and signing authorities apply to CCC contracting documents. For more information, refer to 6.4.2. Annex: Contracting limits including exceptional authorities and the Miscellaneous approval and signing authority limits pertaining to CCC (accessible only on the Government of Canada network) on GCpedia.

9.56 Price certifications and audits of foreign contractors

Effective date: 2017-10-24

1. Canada has agreements in place with several North Atlantic Treaty Organization (NATO) allied governments to conduct price certifications of foreign contractors or subcontractors tied to non-competitive contracts. Price certification services include the review of contractor proposals, subcontractor efforts and the execution of assurance engagements (cost audits). Contracting officers should consider requesting these services from the foreign government of the contractor, subcontractor or supplier's country to ensure that prices paid, or proposed to be charged to the Government of Canada are considered to be fair and reasonable. The determination provided by the foreign government is based on that government's policies, procedures and accounting standards.
2. For price proposal certifications, the proposal must be either non-competitive (as defined in section 3.15 Non-competitive contracting process of the Supply Manual), one responsive bid submitted in response to a competitive tender (as defined in section 5.70 One responsive bid of the Supply Manual), or an amendment to a competitively-awarded contract.
3. Forms and guidance on requesting these services are accessible on GCDOCS (accessible only on the Government of Canada network). All inquiries on this service are to be directed to the PWGSC Price Certification Coordinator in the Price Support Directorate (PSD) at the following e-mail address: PWGSC.appricecertification-pacertificationdeprix.TPSGC@pwgsc-tpsgc.gc.ca.
4. Price certifications provided by the foreign government are generally in the form of a high-level report, and may be treated as though they are the opinion of the Government of Canada.

9.60 Public–Private Partnership (P3) procurements

Effective date: 2022-12-01

1. A Public-Private Partnership (P3) is defined as a long-term contractual relationship between a public authority and the private sector that involves the following:
   1. Provision of capital assets and associated services to meet a defined output specification (i.e., specifications that define what is required rather than how it is to be done);
   2. Integration of multiple phases of the life cycle of an asset (e.g., design, build, maintain, and/or operate) and related financing into a single agreement;
   3. The allocation of risks between the public and private sectors;
   4. Private sector capital at risk throughout the duration of the contract; and
   5. A performance-based payment mechanism.
2. The Directive on the Management of Procurement indicates that PWGSC is responsible for providing advice on methods and supporting approaches for early engagement with industry as well as procurement strategies and industry barrier reduction.

   In keeping with the directive, federal departments and agencies are encouraged to evaluate the potential for using innovative procurement models, including P3s, for large federal capital projects. Based on the Project Navigator guidance, all infrastructure and real property projects having a capital cost of $75 million or more, will be assessed using the Triage Tool to determine whether a P3 or other innovative procurement model may be a suitable procurement option. Should the assessment conclude that there is potential for innovative sourcing, the procuring department will be required to conduct a Procurement Options Analysis (POA).

3. Innovative practices, such as P3s, should be considered in options explored to source a project. Practices could include, for example, the bundling of smaller planned projects.
4. Supporting resources: More information on the concept of P3s and how it has worked in the Canadian federal context can be provided by the Innovative Delivery Strategies Directorate within the Real Property Services, Strategic Sourcing Sector at PWGSC.

9.60.5 Public–Private Partnerships delivery models

Effective date: 2022-12-01

1. Public–Private Partnerships (P3s) can take a number of different forms based on client needs, availability of funding, risks associated and strategic considerations. The project urgency and timeline may also impact the form of the P3.
2. The P3 delivery models include:
   1. Design-Build-Finance (DBF);
   2. Design-Build-Finance-Maintain (DBFM);
   3. Design-Build-Finance-Operate (DBFO); or
   4. Design-Build-Finance-Operate-Maintain (DBFOM).
3. Using the DBF delivery model, the private sector is responsible for designing, building, and financing the construction.
4. Using the other P3 delivery models, the private sector designs, builds, finances, maintains and possibly operates the asset(s) to predetermined output specifications.
5. Unlike traditional procurement methods, where Canada fully funds projects internally and awards separate contracts to one or more firms for the design, construction, operation and maintenance, P3s draw upon private sector financing for a portion of the project costs and are governed by a single performance-based contract called a Project Agreement that integrates the aforementioned project phases.

9.60.10 Federal roles and responsibilities in Public–Private Partnerships

Effective date: 2022-12-01

1. Treasury Board Secretariat (TBS): TBS officials have both a challenge and advisory role on relevant supporting documentation such as the Triage Tool, risk analysis and Value for Money (VFM) analysis.
2. Public Works and Government Services Canada (PWGSC): For PWGSC projects, the Department is accountable for project procurement triaging, procurement options analysis and the procurement process. PWGSC is also responsible for recommending the most appropriate delivery model for each PWGSC initiative. While benefit can be derived from the advice of external experts, accountability remains with PWGSC.
   1. Real Property Branch (RPB) – P3 Development and Advisory Services, Innovative Delivery Strategies (IDS) within the Strategic Sourcing Sector.
      1. The role of IDS is to provide expertise, advice and functional guidance to fully assess, and as required, assist in the development of P3 projects.
      2. Where RPB is the project authority, involvement of IDS is mandatory for projects valued over $75M as per the Project Navigator (accessible only on the Government of Canada network).
      3. Where Acquisitions Program is the procurement authority on behalf of another department or agency, the involvement of IDS is recommended (joint client and operational sector's decision).
      4. For projects originating within RPB, third party financial analysis (i.e., VFM analysis) will be validated according to existing RPB procedures.
      5. For PWGSC projects outside of RPB, validation of financial analysis, if required, may be done by using a third party consultant.
      6. Supporting resources can be provided by the IDS directorate upon request by sending an email to the IDS generic email box TPSGC.SISILP-RPSIDS.PWGSC@tpsgc-pwgsc.gc.ca.
   2. Acquisitions Program (AP)
      1. As the common service provider for acquisition services, AP will act as the procurement authority for client departments' projects that are over their delegated authority as it would for any other procurement method.
      2. AP's involvement should start early in the planning of P3 procurements.
      3. Other government departments are responsible for their choice of procurement method and supporting analysis, however, should AP be identified as the procurement authority, validation of financial analysis must be confirmed.

9.60.15 Triage Tool

Effective date: 2022-12-01

1. The Triage Tool provides a preliminary screening process that highlights key criteria and questions relevant to assessing the potential viability of the groups of delivery models. Once the requirement has been identified, organizations can determine whether a P3 is a viable option for further consideration. It is important to screen early to ensure that the activities through the planning process are appropriate.
2. PWGSC's Strategic Sourcing Sector has developed a Triage Tool that is available upon request by sending an email to the IDS generic email box TPSGC.SISILP-RPSIDS.PWGSC@tpsgc-pwgsc.gc.ca. The Triage Tool must be used by departments and agencies when the project meets the criteria hereto. Considerations that are explored through the Triage Tool include, but are not limited to the following:
   1. private sector interest and capacity;
   2. asset characteristics and size;
   3. time horizon;
   4. public acceptance or interest;
   5. opportunity to transfer risk;
   6. performance specifications;
   7. innovation;
   8. organizational capacity;
   9. financial or funding considerations.

9.60.20 Value for money

Effective date: 2022-12-01

1. In the Government of Canada, Public–Private Partnerships (P3s) are governed by various Treasury Board policies and their associated standards and directives. Ensuring value for money in the management of assets and acquired services is a guiding principle of Treasury Board policy instruments.
2. Deputy heads are accountable for ensuring that proper due diligence is conducted and that investment decisions demonstrate value for money in line with the principles outlined in Treasury Board policies.
3. Once a P3 has been identified as a potential procurement method for further considerations using the Triage Tool, value for money will be the determining factor for selecting the preferred method.
4. Value for Money analysis essentially represents a risk-adjusted comparison of the costs and benefits of different procurement options. It is an iterative process that takes place throughout the project’s initiation, planning and definition stages of the planning process. This analysis is based on significant input from the project team and client who are most familiar with Government of Canada and project-specific requirements.
5. Internal and external subject matter experts with financial and technical knowledge and experience are best positioned to support an objective assessment and consideration of current market trends.
6. The decision whether or not to proceed with a P3 considers the analysis of program requirements, strategic considerations as well as project-specific qualitative, quantitative, and risk factors.
7. The recommendation to proceed or not with a P3 is prepared by Government of Canada officials, taking into consideration input from internal and external subject matter experts.

9.60.25 Stages in Public–Private Partnership procurement process

Effective date: 2022-12-01

1. Even though it is important for Public Works and Government Services' Acquisitions Program (AP) to be involved early in the process, many of the steps set out below would have already been processed by the client prior to AP receiving the requisition. Since each project has different objectives and timelines, some of these steps may need to be modified accordingly.
2. Before using the Triage Tool or undertaking any analysis of procurement options, departments and agencies should ensure that the organizational needs have been clearly defined. A needs analysis and a preliminary options analysis are also to be included as part of the business case.
3. Treasury Board Secretariat views P3s as having the following stages:
   1. Initial Planning and Identification
      1. Preplanning
         • Needs analysis
         • Feasibility analysis
         • Identification of the technical solution for the project
         • Triage Tool
         • Decision Point – P3 identified as a potential option
      2. Options Analysis
         • Develop indicative costs and schedule
         • Project complexity and risk assessment
         • Preliminary Value for Money Analysis
         • Procurement Options Analysis / Business Case
         • Decision Point – P3 identified as preferred option in the Procurement Options Analysis / Business Case
         • Analysis of advisory service requirements
         • Update project schedule
         • Develop project charter
         • Plan for competitive process
   2. Project Definition
      1. Develop output specifications
      2. Develop Project Agreement
      3. Develop payment mechanism
      4. Develop competitive process documents
      5. Update project costs and schedule
      6. Update Value for Money Analysis
   3. Project implementation
      1. Competitive Process
         • Issue Letter of Interest (LOI) or Request for Information (RFI)
         • Issue Request for Qualifications (RFQ)
         • Issue Request for Proposals (RFP) to qualified bidders
         • Engage in commercially confidential collaborative dialogue with bidders
         • Refine Project Agreement accordingly
         • Proposal evaluation
         • Recommendation of selected proposal
         • Complete Value for Money Analysis validation and refreshes, including insertion of proposal information from the successful bidder
         • Decision Point – P3 identified as preferred option through Value for Money Analysis validation and refreshes.
      2. Implementation
         • Finalize offer with selected bidder
         • Financial Close and Commercial Close
         • Partners enter into contract
         • Design, construct, and commission
         • Transition to operating period
         • Operating period contract management and monitoring

9.60.30 Public–Private Partnership procurements: key differences

Effective date: 2022-12-01

If a Public–Private Partnership (P3) is chosen as the preferred procurement option, many of the steps in a typical procurement process are undertaken. This includes a Request for Qualifications (RFQ), Request for Proposals (RFP) and response and proposal evaluations. Consideration should also be given to issuing a Letter of Interest (LOI) or a Request for Information (RFI). Information sessions, Industry Engagement activities and site visits will most likely be required. However, some elements of the P3 process differ from traditional procurement processes, for example:

1. A short list of qualified bidders is established as a result of the RFQ. Limiting the procurement process to only qualified bidders will require the proper approvals (as part of the procurement plan).
2. Emphasis is given to output-based specifications/requirements.
3. An honorarium is typically provided to the unsuccessful bidders who submitted a compliant bid at the RFP stage. This is subject to approvals (as part of the procurement plan).
4. Proposals can be brought by consortia made up of different private sector firms rather than an individual company. The consortia often have international, national and local representation.
5. Proposals are traditionally based on high-level designs rather than the completed designs found in traditional procurement.
6. Commercially confidential meetings involve many face-to-face sessions with each pre-qualified consortium. These meetings help ensure that the public sector's needs are well understood. Due diligence must be carried out to ensure information is released simultaneously to all involved parties. These meetings are typically overseen by a Fairness Monitor.
7. Given their complexity, P3s require significant involvement of third-party advisors.
   1. The Innovative Delivery Strategies Directorate can assist in obtaining support for Real Property Branch projects and other related projects.
   2. Within the Acquisitions Branch, the Contract Cost Analysis, Audit and Policy Directorate should be involved in any P3 project discussion regarding an RFQ bidder's financial capacity evaluation.
8. There is a single Project Agreement that integrates phases of the project (design, build, finance, operations and maintenance) over a 25-30 year period. A draft Project Agreement is included as part of the RFP and refined with the private sector's input during the procurement process.
9. Procurement is completed upon the successful bidder achieving financial close, commercial close and subsequent signing of the Project Agreement. The next phase is the simultaneous design and construction, which paves the way for subsequent phases such as operations, occupation or delivery for the duration of the Project Agreement.

9.60.35 Public–Private Partnership Treasury Board approvals

Effective date: 2016-01-28

1. Public–Private Partnerships (P3s) may require a variety of Treasury Board (TB) approvals, including project approval, expenditure authority, contract approval, and the authority to enter into a real property transaction.
2. These approvals depending on their particular details may be requested through TB submissions.
3. Treasury Board Secretariat should be consulted early in the planning process and regular meetings should be scheduled with central agencies to identify the authorities required, to seek advice, and explain the complexities of the project.
4. It should be noted that in the process of reviewing TB submissions, the Secretariat monitors policy compliance and may request supporting information from departments and agencies accordingly.

9.60.40 Public–Private Partnership project team

Effective date: 2016-01-28

1. The size and magnitude of Public-Private Partnerships require a multitude of public sector skill sets. Subject matter experts from the public sector are supported by a range of private sector experts (i.e., legal, financial, procurement, fairness/integrity and technical advisors).
2. Typically, a dedicated team is brought together to coordinate all project activities, including planning, developing performance specifications, communications, procurement as well as oversight during design and construction.
3. A dedicated project team should be composed at the on-set of the project approval, with clearly defined roles and responsibilities for each team member.
4. Experts from the private sector can form part of this team and should this be the case, a confidentiality agreement must be part of the working team agreement.

9.60.45 Payments in Public–Private Partnerships

Effective date: 2016-01-28

1. Depending on the Public–Private Partnership (P3) project, the government may not issue any payments until the project is completed and certified by an independent certifier.
2. Another approach is to provide milestone payments.
3. In a P3, it is the private sector's responsibility to secure financing; this is often a combination of debt and equity financing.
4. Once the asset is ready for use or the service has been delivered to a level of certified satisfaction, the government initiates payment to the private partner, as outlined in the project agreement.
5. Payments may be subject to a holdback provision or liquidated damages (penalties) should the private partner not fully meet the obligations as outlined in the project agreement's predetermined performance specifications.
6. For long term projects where operations and maintenance are an integral part of the project, payments are usually made on a monthly or quarterly basis, following in-service commencement, over the term of the Agreement.

9.70 Canadian Collaborative Procurement Initiative (CCPI)

Effective date: 2021-12-02

1. In 2015, the Government of Canada decided to extend the use of its procurement instruments to the Provinces and Territories (PTs), including Canadian municipalities, Canadian aid/public health agencies and intergovernmental organizations, in order to leverage the buying power of the Government of Canada. A February 2015 Order-in-Council (OIC) 2015-0241 provided PWGSC with the authority necessary to move forward with this initiative. The OIC ensures that PWGSC can do anything relating to the powers, duties and functions of paragraphs 6 (a), (b) and (c) of the Department of Public Works and Government Services Act on behalf of any province or municipality in Canada, any Canadian aid agency or public health organization or any intergovernmental organization or foreign government.
2. Procurement Assistance Canada (PAC) is leading the Canadian Collaborative Procurement Initiative in Acquisitions Program. Canadian Collaborative Procurement Initiative is an agreement which enables provinces and territories as well as Municipalities, Academic Institutions, Schools and Hospitals (MASH) sector and other entities to use federal procurement tools to procure goods and services. Suppliers can sell to multiple levels of government in a streamlined approach. Buyers in the provinces, territories and MASH sector can benefit from rates negotiated by the Government of Canada.
3. For further information, please refer to the CCPI website and the Canadian Collaborative Procurement User Guide (accessible only on the Government of Canada network).
4. For more information, email the Federal, Provincial, Territorial and International Relations team in Procurement Assistance Canada at TPSGC.fptcollaboratif-fptcollaborative.PWGSC@tpsgc-pwgsc.gc.ca.

Annexes

• 9.1 - Annex: Memorandum of Understanding between Public Works and Government Services Canada and CORCAN
• 9.2 - Annex: Notification of procurement to Modern Treaty (Comprehensive Land Claims Agreements) claimant groups
• 9.3 - Annex: Comprehensive Land Claims Agreements evaluation criteria
• 9.4 - Annex: Requirements for the set-aside program for Indigenous Business
• 9.5 - Annex: Procurement strategy for Indigenous Business set-aside checklist
• 9.6 - Annex: Memorandum of Understanding - Canadian Commercial Corporation / Public Works and Government Services Canada
  • 9.6.1 - Annex A to Memorandum of Understanding: responsibility Matrix
  • 9.6.2 - Annex B to Memorandum of Understanding: Canada-United States Defence Production Sharing Agreements
  • 9.6.3 - Annex C to Memorandum of Understanding: Canada-United States Defence Development Sharing Agreement