Procurement Negotiating Table Annual Meeting
Vancouver November 7, 2012
RECORD OF DECISIONS
All Parties participated either in person or by phone, except NB and PE.
1.
Welcome and Approval of Agenda
The PNT Chair (NL) welcomed all participants. The agenda was approved.
2.
Presentation by guest Speaker Maureen Sullivan
There was a presentation from Maureen Sullivan from NECI. The power point presentation from
Maureen Sullivan will be distributed to PNT.
3.
Approval of Previous Record of Decision
The RODs for the December 8, 2011 and March 22, 2012 were approved. There was a question
regarding the status of outstanding procurement reports. The secretariat reported that overdue reports
of more then 2 years were all submitted and that a few outstanding reports from the previous year
were still outstanding.
4. a) Article 506(7) - Pre-Qualification Lists, Source Lists and Standing Offers
There was discussion about information from each party regarding definition of source and prequalification list that was collected in 2006. Parties had been asked to update the 2006 information.
Review of that updated information indicated that there was very little commonality about terminology
and how source and pre-qualification lists were implemented. It was agreed that trying to impose
common definitions of these terms would unduly limit the flexibility of how these AIT provisions are
implemented. Therefore, no further work would be done in this area. CA and QC will look at wording
of article 506(7) that was re-introduced by CA. Following this discussion the wording will then go to the
WG for consideration then will be reported back to PNT at the next call.
b) Information Note: definition/question of sending to CIT for Interpretive note approval
It was agreed that Parties consult internally on the question of PPPs, most notably Parties that have
PPP advisory bodies are asked to consult and share with the PNT if updating the note necessary, and
what those updates would look like. Following a reasonable amount of time for consultation the
secretariat will call a meeting of WG, consisting of BC, ON, NL, CA and MB to discuss the note and the
internal consultations.
c) List of downgrade of status request approvals
All parties except 1 have approved requested changes by YT on the downgrade of its Legislative
Assembly. CA will consult internally on this issue and return to the Secretariat for an answer. Three
other outstanding requests where discussed and it was noted that there were few responses.
d) List downgrade approval Process
There was discussion on the approval process for a request to downgrade an entity from covered to
excluded. There was discussion about the possibility of time limits. There was discussion about
developing a checklist for approvals. There was discussion on re-examining downgrades from 2010
forward. There was also conversation about approvals for downgrades being sent to ITRs to discuss
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as the nature of affecting the downgrade of coverage affects the Agreement. It was agreed to form a
Working Group consisting of MB (chair), QC, AB and ON to discuss the issue and report back to PNT
with recommendations.
e) Discussion on future chapter 5 reform
There was discussion on the need to reform chapter 5 in light forthcoming changes resulting form
several new international agreements. There was a reminder that the BC led internal trade working
group did some work on reforming chapter 5 and that it could be a starting point. It was agreed to
shelve this discussion for the next PNT call which is due to follow the finalisation of the CETA and will
most likely guide the discussion of reform.
f) Discussion on procurement disputes process
There was a discussion on the effectiveness of the procurement dispute process. QC noted some
translation issues with the draft document for discussion which will be sent directly to the secretariat for
correction. A number of shortcomings were noted such as lack of clarity in Article 513(7)(B) as to who
appoints the chair, a question of who contacts the panelist and who pays the panelists among other
issues. AB noted that the NWPTA does have a bid dispute mechanism that may assist reform
discussions. It was decided to await CETA finalization and re-examine the question through the
existing working group.
g) Restarting the Sustainable Procurement Working Group
There was discussion of growing interest in green policies and a need to examine how these policies
could affect the AIT and its obligations on Parties. It was agreed to reform the WG with QC and MB
volunteering to participate. Other Parties are asked to contact the Secretariat to volunteer. The WG will
meet before Christmas to initiate discussions.
h) Article 511.1: Usefulness of providing below threshold data
There was discussion on the usefulness, accuracy or need for submitting data below threshold. It was
noted by several Parties that below threshold data is, at best, an estimation as this information is not
collected and deemed difficult to track. It was agreed that all Parties consult internally on the need and
reliability of below threshold data and return at the next PNT call with an opinion on whether to stop
submitting the data (as one party currently does not) or whether to possibly lower the threshold to
match other non-AIT requirements.
i) 14th Protocol of amendment
PNT was informed that the14th protocol is now undergoing internal cabinet approvals and also that 5
Parties have signed the Protocol. It was noted there will be little direct impact on Chapter 5; the most
notable is the deletion of “Interpretative Note No 1.”
5)a) International negotiations and impact on Chapter 5
The chair noted that there are a series of international agreements that will soon be ratified which may
affect Chapter 5 obligations. Agreements such as CETA, Trans-Pacific Partnership, the Canada-India
Comprehensive Partnership Agreement (CEPA) and the WTO Agreement on Government
Procurement could change how Procurement is practiced in Canada. It was agreed to discuss this
issue further at the next call following the expected signing of the CETA.
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b) Best Price Guarantee
QC reminded PNT that it had encountered the issue previously reported of the nature of a “best price
guarantee” also known as a “favoured customer clause” (which forces companies to retroactively
reduce its price if they offer the same product at a lower price in another jurisdiction) some companies
have started offering cash donations or in-kind work as part of their bids on equipment contracts in
order to keep the price of the bid high but adding incentive for value. This one Hospital had in fact
queried in its tender document what added incentives vendors were willing to give it to protect the
vendor’s best price guarantee. QC noted that it had put a stop to the practice but is now putting the
question to the PNT of whether they were of the opinion that this practice does in fact violate the AIT.
And if so would it worth changing the AIT to exclude this practice? PNT is asked to consider the
question on the information note and return the Secretariat and QC with feed back. This feedback will
be presented for discussion at the next PNT call.
c) Complaint Procedure Chart
There was an update on the complaint procedure chart process. MB will contact QC to finalize the
chart. Parties are reminded that this chart, once completed is to be used a tool for PNT Parties and not
meant for publication. MB noted that the chart will have to be revised if PNT decides to go forward with
possible reforms to Article 513.
d) Information Note for MASH sector
QC presented an information note on legislation applicable to the MASH sector. The note explained
the history and analysis related to the decision of listing legislation applicable to MASH in the MASH
annex rather then list entities, as is the practice in the Crown Corporation annex and the list of
government organizations. It was decided to await for the outcome of the CETA negotiations and
discuss what to do with the note at the next PNT call.
6. Other
PNT agreed to hold a call in January/February to discuss the WG reports; the exact date to be
determined later by the chair. It was also agreed that that the Jan/Feb call PNT would consider
whether to have a face to face meeting or an extended call in late April or early May.
It was also agreed that once the ROD is accepted that Parties return any questions put to it within
three weeks to have data and feedback to consider before Christmas.
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Prepared by: ITS, November 14, 2012
Approved: Chair, November 20, 2012
Translation/Distribution: November 20, 2012
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