Fairness in Procurement Act, 2018 McMahon, Hon. Eleanor President of the Treasury Board — Bill 194 (41st Parliament, 2nd Session)

Bill 194, 41-2

Ontario — Bills

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Bill 194, Fairness in Procurement Act, 2018

McMahon, Hon. Eleanor President of the Treasury Board

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Original

Royal Assent

[41] Bill 194 Royal Assent (PDF)

EXPLANATORY

NOTE

This

Explanatory Note was written as a reader's aid to Bill 194 and does not form

part of the law.

Bill 194 has been enacted as

Chapter 4 of the Statutes of Ontario, 2018.

The

Fairness in Procurement Act, 2018 is enacted. The

Act provides that if, in the Minister's opinion, certain measures have been

imposed by purchasers from an American jurisdiction, the Lieutenant Governor in

Council may designate the American jurisdiction as an offending American

jurisdiction.

The

Act provides that the participation of suppliers from offending American

jurisdictions in procurement processes initiated by Government entities or

broader public sector entities is subject to certain measures, and that each

aspect of this requirement is subject to the further details and rules that may

be set out in the regulations. The Act permits regulations to be made

establishing processes by which exemptions from the Act or the regulations may

be obtained. The consequences of contraventions of the Act or regulations are

also specified.

Bill 194 2018

Act respecting fairness in procurement

Preamble

The

Government of Ontario values open, fair and competitive procurement. The

Government of Ontario is committed to defending the province's economic

interests and protecting the interests of Ontarians and Ontario businesses. In

the event restrictions are established on Ontario businesses' opportunities to

participate in public procurement, the Government of Ontario requires the

authority to respond proportionally.

Therefore,

Her Majesty, by and with the advice and consent of the Legislative Assembly of

the Province of Ontario, enacts as follows:

Definitions

this Act,

"American

jurisdiction" means a sub-national jurisdiction of the United States of

America, including any state of the United States of America, the District of

Columbia, the United States Virgin Islands, any local government, any territory

or insular possession subject to the jurisdiction of the United States of

America, or any other prescribed sub-national entity subject to the

jurisdiction of the United States of America; ("autorité législative américaine")

"broader

public sector entity" includes,

(

a) a

hospital within the meaning of the Public Hospitals Act ,

(

b) the

University of Ottawa Heart Institute/Institut de cardiologie de l'Université

d'Ottawa,

(

c) a

board as defined in subsection 1 (1) of the Education Act ,

(

d) a

post-secondary educational institution in Ontario that receives regular

operating funding directly from the Government of Ontario,

(

e) an

approved agency designated as a children's aid society under subsection 15

(2) Part I of the Child and Family Services Act ,

(

f) a

community care access corporation within the meaning of the Community Care Access Corporations Act, 2001 ,

(

g) a

corporation controlled by one or more broader public sector entities that

exists solely or primarily for the purpose of purchasing goods or services for

the broader public sector entity or broader public sector entities, and

(

h) any

other persons or entities prescribed for the purposes of this definition;

("entité parapublique")

"Government

entity" means,

(

a) the

Crown in right of Ontario, including any ministry of the Government of Ontario,

(

b) a

public body designated in regulations made under the Public

Service of Ontario Act, 2006 ,

(

c) Independent

Electricity System Operator, and

(

d) Ontario

Power Generation Inc. and each of its subsidiaries; ("entité gouvernementale")

"Minister"

means the President of the Treasury Board or such other member of the Executive

Council to whom responsibility for the administration of this Act may be assigned

or transferred under the Executive Council Act ; ("ministre")

"offending

American jurisdiction" means an American jurisdiction designated by a

regulation made under subsection 2 (1); ("autorité législative américaine

contrevenante")

"prescribed"

means prescribed by or in the regulations made under this Act; ("prescrit")

"procurement

contract" means a contractual or commercial arrangement for the acquisition by a

purchaser of goods or services from a supplier, through purchase, rental, lease

or conditional sale, or by otherwise conferring value or a benefit on the

supplier; ("contrat d'approvisionnement")

"procurement

process" means a process in which a purchaser selects a supplier with which to

enter into a procurement contract, other than a process initiated by a

Government entity or broader public sector entity for the procurement of goods

and services intended for commercial sale or resale; ("processus

d'approvisionnement")

"supplier"

means any sole proprietorship, partnership, business, corporation or other legal

entity that offers goods or services for sale or lease or other form of

exchange. ("fournisseur")

Offending

American jurisdiction

(1) The

Lieutenant Governor in Council may make regulations designating an American

jurisdiction as an offending American jurisdiction if, in the Minister's

opinion, the government of the American jurisdiction has enacted legislation or

otherwise provided direction to entities under its authority to apply requirements,

restrictions, policies, sanctions or other measures that may inhibit or prevent

Ontario suppliers from participating or succeeding in procurement processes initiated

by purchasers from the offending American jurisdiction.

Participation

of suppliers from American jurisdictions

(2) The

participation of suppliers from offending American jurisdictions in procurement

processes initiated by Government entities or broader public sector entities is

subject to the requirements, restrictions, policies, sanctions or other

measures set out in the regulations, and any affected suppliers, Government

entities and broader public sector entities shall comply with the regulations.

Same

(3) Subsection

(2) applies in respect of the suppliers, offending American jurisdictions, procurement

processes and Government entities or broader public sector entities that are

specified in the regulations, and in the circumstances specified in the

regulations, unless an exemption is obtained in accordance with a process

provided in the regulations.

Enforcement

Contract

void

(1) A

procurement contract entered into by a broader public sector entity is void if

the procurement contract or the process by which it was entered into contravenes

this Act or a regulation made under this Act, unless the Minister by order

validates it.

Funding

and other agreements

(2) Every

obligation of a broader public sector entity under this Act or the regulations

made under this Act is deemed to be an obligation it is required to comply with

under the terms of every agreement or other funding arrangement between the

broader public sector entity and the Government of Ontario.

Other

sanctions

(3) If

a broader public sector entity contravenes this Act or a regulation made under

this Act or if it enters into a procurement contract that contravenes this Act or

a regulation made under this Act, the prescribed sanctions or other measures

apply as provided in the regulations.

Limitations

on remedies

(1) No

cause of action arises against the Crown, members of the Executive Council, a

Government entity or a broader public sector entity or against agents,

appointees or employees of the Crown, the Executive Council, a Government

entity or broader public sector entity, as a direct or indirect result of,

(

a) the

enactment or repeal of any provision of this Act;

(

b) the

making or revocation of any provision of a regulation or order made under this

Act; or

(

c) anything

done or not done in accordance with this Act or a regulation or order made

under this Act.

compensation

(2) Despite

any other Act or law, no person is entitled to any compensation for any loss or

damages, including loss of revenues or loss of profit, arising from the enactment,

repeal or application of this Act, the making, revocation or application of

any regulation or order made under this Act or anything done or not done in accordance

with this Act or a regulation or order made under this Act.

Same

(3) Without

limiting the generality of subsection (1), that subsection applies to an action

or other proceeding claiming any remedy or relief, including specific

performance, injunction, declaratory relief, any form of compensation or

damages, including loss of revenue and loss of profit, or any other remedy or

relief.

Proceedings

barred

(4) No

proceeding, including but not limited to any proceeding in contract,

restitution, tort, trust, fiduciary obligation or otherwise, that is directly

or indirectly based on or related to anything referred to in clause (1) (a),

(

b) or (

c) may be brought or maintained against the Crown, members of the

Executive Council, a Government entity or a broader public sector entity or

against agents, appointees or employees of the Crown, the Executive Council, a

Government entity or broader public sector entity.

Rights

preserved

(5) Subsections

(1), (2), (3) and (4) do not prevent the Attorney General from bringing an

application or commencing proceedings to require a person or entity subject to

this Act to comply with this Act and the regulations made under this Act.

Regulations

(1) The

Lieutenant Governor in Council may make regulations for carrying out the

purposes and provisions of this Act.

Same

(2) Without

restricting the generality of subsection (1), the Lieutenant Governor in

Council may make regulations,

(

a) prescribing

sub-national entities for the purposes of the definition of "American

jurisdiction";

(

b) prescribing

persons or entities for the purposes of clause (

h) of the definition of

"broader public sector entity";

(

c) governing

when a purchaser or supplier is considered to be from Ontario or from an offending

American jurisdiction;

(

d) governing

whether subsection 2 (2) applies in respect of suppliers, offending American

jurisdictions, procurement processes, Government entities or broader public

sector entities, and specifying and governing circumstances for the purposes of

subsection 2 (3);

(

e) prescribing

and governing requirements, restrictions, policies, sanctions or other measures

that may by imposed on suppliers, Government entities or broader public sector

entities for the purposes of subsection 2 (2), including,

(

i) excluding

suppliers from offending American jurisdictions from participating in

procurement processes or being awarded procurement contracts,

(ii) requiring

suppliers from offending American jurisdictions to provide additional information

to Government entities or broader public sector entities or meet additional

requirements when participating in procurement processes,

(iii) evaluating

proposals for procurement contracts from offending American jurisdictions

according to additional or more stringent criteria than applies to other

proposals, and

(iv) requiring

Government entities or broader public sector entities to impose requirements,

restrictions, policies, sanctions or other measures described in subclauses

(i), (ii) and (iii) on suppliers;

(

f) requiring

Government entities and broader public sector entities to provide information

to the Minister regarding their compliance with this Act and regulations made

under this Act;

(

g) prescribing

and governing sanctions or other measures for the purposes of subsection 3 (3);

and

(

h) establishing

and governing processes by which Government entities or broader public sector

entities may obtain exemp

Document details

Collection	Ontario — Bills
Citation	Bill 194, 41-2
Type	bill
Volume / chapter	p41 s2 bill 194 html
Language	en
Format	html
Source	PROVINCIAL
Identifier	5f4c496e00f66216888d3fec87afa91955f79c34

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