Procurement by certain government entities may be subject to obligations under the World Trade Organization Agreement on Government Procurement, the North American Free Trade Agreement and the Agreement on Internal Trade. Stikeman Elliott has worked with government clients to define their obligations pursuant to the applicable trade agreements, and to work to minimize the risks of a challenge to procurements pursuant to these grounds, or the common law of tendering.

The firm also works for private sector suppliers who wish to challenge procurements, whether before the Canadian International Trade Tribunal or through the courts. Lawyers at Stikeman Elliott have represented clients in appearances before the Canadian International Trade Tribunal, and at the Federal Court of Appeal in judicial review applications in respect of decisions of the Tribunal.

Our specific expertise in procurement includes:

• Drafting of tender documentation;
• Identifying prospective opportunities and approaches for bidding on government and private sector contracts, and providing advice on developing RFPs and how best to win bids, both for new contracts and contract renewals;
• Advising on the legal requirements for the holding of a competitive tender under the public procurement rules;
• Providing ongoing legal advice to bidders during the tender process;
• Negotiation and drafting of applicable contracts following the competitive tender process; 
• Advising on the rights and obligations of public bodies and the effects of non adherence to the public procurement rules and available appeal procedures;
• Advising on freedom of information/privacy rights in a tender process;
• Advising on contractual and other forms of liability in the context of the tender process;
• Risk assessment - identifying possible insurance issues; 
• Advising individuals and enterprises with respect to their rights in the context of potential government procurement and representing them before the CITT, the body mandated to resolve disputes in respect of the AIT, NAFTA and WTO covered procurements; and
• Functioning as government contacts in Ottawa - watching out for clients' interests, looking for potential opportunities and keeping clients informed about key and emerging issues such as changing government procurement policies, Treasury Board standard clauses and appeal procedures.

Representative Experience

Procurement Process

Stikeman Elliott has extensive experience assisting parties through the procurement process, including:

• Highway 407 project, as advisers to one of a number of consortiums that participated in an auction process for the right to operate Highway 407, a major toll highway north of Toronto. 
• Acting for a Union Station Consortium on structuring, financing, municipal approvals, leasing and related issues concerning its bid for the redevelopment of Union Station in Toronto.
• Acting for a syndicate led by Macquarie North America Limited and Kiewit Construction Cie, who won the tender for the construction of Autoroute 25 - the Quebec government's first public-private partnership project. 
• Acted for another government institution in providing advice on the scope of its obligations under Annex 502.3 of the Agreement on Internal Trade.
• Acted for Société générale de financement du Québec in the drafting and negotiation of engineering procurement and construction contracts in respect of the development of a petrochemical plant.
• Advising Ontario Power Authority in connection with the procurement process related to the Integrated Power System Plan.
• Acted for proponents, including Sithe Global Power LLC, in connection with power procurement processes for provincial authorities, including Ontario Power Authority and TransAlta.
• Acted for Bema Gold Corporation in connection with equipment procurement and construction contracts for mining acquisitions and developments.
• Represented Eurocopter with respect to Canadian Government procurement of helicopters.

Procurement Challenges

We have also acted for a number of parties in providing advice with respect to procurement challenges and the subsequent judicial reviews, including: 

• Defending Canada Post in a complaint brought by Discover Training at the Canadian International Trade Tribunal. 
• Defending Canada Post in two complaints brought by Brookfield Lepage Johnson Controls Facility Management Services at the Canadian International Trade Tribunal. 
• Defending Canada Post's interests in a complaint filed by Canadian North Inc. against the Department of Indian Affairs and Northern Development, in respect of a procurement by Canada Post. This complaint had far-reaching implications for Canada Post procurement practice, and we successfully brought an application for judicial review to overturn a decision of the Canadian International Trade Tribunal which would have had serious negative impacts on Canada Post's procurement freedom.
• Representing EDS Canada Ltd., in a complaint brought to the Canadian International Trade Tribunal in respect of procurement by the Department of Public Works and Government Services for the provision of informatics professional services for the Department of National Defence.
• Representing the interests of the winning bidder, Calian Ltd., in a complaint brought to the Canadian International Trade Tribunal by an unsuccessful bidder, Med-Emerg International Inc., against the Department of Public Works and Government Services in respect of the provision and management of a work force of qualified health service providers, as well as the subsequent judicial review.
• Representing Calian Ltd. in a complaint brought to the Canadian International Trade Tribunal against the Department of Public Works and Government Services in respect of a contract for training services, which resulted in a determination which significantly affects considerations of the scope of conflict of interest in federal government procurement.
• Representing the interests of the winning bidder, Calian Ltd., in a complaint brought by an unsuccessful bidder, Valcom Consulting Group, Inc., against the Department of Public Works and Government Services. This procurement complaint led to one of the very few oral hearings that have been undertaken in the Canadian International Trade Tribunal's history in respect of procurement matters.