Trans-Pacific Partnership (TPP) – Government Procurement Chapter

This post was written prior to our January 2017 merger, under our previous firm name, MacPherson Leslie & Tyerman LLP.

It was announced on October 4, 2015 that negotiations among the 12 countries comprising the Trans-Pacific Partnership (TPP) (Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, United States and Vietnam) have successfully concluded.

The text of the agreement has not yet been released and any final agreement would still be subject to ratification by each of the partner countries.  If ratified, the TPP Agreement will likely have a sweeping impact on numerous sectors of the economy, including government procurement.

While the text of the Government Procurement Chapter of the TPP Agreement has not been released, the Government of Canada has published a Technical Summary of Negotiated Outcomes that should give procuring entities some idea of what to expect. Some of the notable items from the summary are set out below.

  • It will contain rules regarding non-discrimination, transparency, and accountability in government procurement practices.
  • It will require that procuring entities only evaluate proposals based on the criteria set out in the relevant procurement documentation.
  • It will entitle unsuccessful bidders to an explanation of the results of the procurement process.
  • It will provide unsuccessful bidders with the right to challenge the decision of a procuring entity before a tribunal or other review authority.

In addition, provisions of the North American Free Trade Agreement (NAFTA) pertinent to government procurement will be harmonized with the Government Procurement Chapter of the TPP Agreement.

At this point, it is not clear which government entities and activities will be covered by the Government Procurement Chapter of the TPP Agreement. The TPP Agreement will include a list of the entities covered by the Government Procurement Chapter. If the Government Procurement Chapter of the TPP Agreement applies to public sector procuring entities a the sub-national level (which appears likely), the right of unsuccessful bidders to challenge a procurement decision will have a significant impact on many public sector procuring entities across western Canada.

It seems likely that if the TPP Agreement is ratified, the Government Procurement Chapter will add yet another wrinkle to the already complicated landscape surrounding government procurement in Canada.