Proposed draft: Ineligibility and Suspension Policy for consultation

Note

This consultation closed on November 13, 2018 (11:59 p.m. Pacific Time).

This proposed draft policy was used for the purpose of the consultation: Administering Canada's expanded Integrity Regime held from October 11, 2018 to November 13, 2018.

The Government of Canada was seeking comments/feedback on the application of the proposed draft policy and any of its requirements. Feedback provided through the consultation is taken into consideration to further refine the Policy before it comes into effect.

This consultation did not include the Remediation Agreement regime.

On this page

1. Effective date

This policy is effective as of a date to be determined. This date is expected to be in early 2019.

2. Application

This policy applies to all procurement processes, standing offers, supply arrangements, contracts and other instruments entered or commenced by a department ("department") or agency ("agency") identified in schedules I, I.1 or II of the Financial Administration Act or another federal entity that voluntarily adopts this policy, other than the following:

3. Context

Canada has an obligation to protect and safeguard the use and expenditure of public funds, to ensure stewardship and transparency, and to uphold the public trust in relation to Canada's contracts. Unethical business behaviour by suppliers undermines fair competition, threatens the integrity of markets, is a barrier to economic growth, increases the cost and risk of doing business, and undermines public confidence in government institutions.

The Integrity Regime is intended to reduce the instances in which Canada enters into or maintains contracts with suppliers that offend the foregoing. In keeping with the significant discretion Canada exercises when entering into contracts, all actions by PWGSC and the Registrar under this policy require considerable discretion (that is, the discretion of PWGSC or the Registrar, as the case may be), as governed by contracting law.

This policy sets out, notably, the circumstances in which the Registrar may declare a supplier ineligible to be, or suspended from being, awarded a contract with Canada (herein referred to as being "ineligible" or "suspended"). It also sets out the maximum ineligibility period and suspension period and the process for determining the length of the ineligibility and suspension periods, the criteria for invoking the public interest exception, the process for entering into an administrative agreement, the reduction to a period of ineligibility available pursuant to an administrative agreement and the process by which the Registrar makes determinations on the Registrar's own initiative or upon request by a supplier.

The Integrity Regime consists of this policy, any directives issued further to this policy and any clauses used in instruments relating to contracts or real property agreements that incorporate this policy by reference. Directives will be used for such purposes as elaborating on or clarifying aspects of this policy and form a binding part of this policy. There are found on the Integrity directives page of the Integrity Regime website.

PWGSC may also issue, for information purposes only, information bulletins associated with this policy to provide greater clarity. Information bulletins are for information purposes only. These may be found at the Information and Bulletins page of the Integrity Regime website.

For greater clarity, the Registrar does not make determinations of eligibility pursuant to this policy but rather of ineligibility.

4. Definitions

Definitions to be used in the interpretation of this policy are in Appendix 1.

5. Responsibilities

5.1 Registrar responsibilities

The Registrar is responsible for making determinations of suspensions, ineligibility, periods of ineligibility and suspension, and entering into administrative agreements. The determinations made by the Registrar under this policy will be relied upon by a department or agency (which has authority to enter into a contract) when making a decision on whether to enter into a contract with a supplier.

5.2 Public Works and Government Services Canada responsibilities

PWGSC is responsible for administering the Integrity Regime on behalf of Canada (which includes, without limitation, making recommendations regarding ineligibility, ineligibility periods, suspension and terms and conditions of administrative agreements). PWGSC may, when considered appropriate, issue a directive and information bulletins with respect to any aspect of this policy.

5.3 Department and agency responsibilities

Departments and agencies may make certain decisions under the Integrity Regime, as noted in this policy. The Public Interest Exception, for instance, is an example where the knowledge and expertise of the department or agency is better suited to deciding whether it is in the public interest to contract with an ineligible or suspended supplier. A department or agency may also exercise the right to terminate a contract, if provided for under such contract.

When, pursuant to Section 2, a department or agency excludes a contract from application of this policy (such as when applying this policy could compromise a criminal investigation, national security or public safety or when applying this policy conflicts with its rehabilitation mandate), the department or agency will ensure that the rationale for invoking the exclusion is recorded on file and aligns with its internal control framework.

6. Ineligibility

6.1 Assessment of ineligibility

PWGSC may make an assessment of supplier ineligibility pursuant to this policy in response to a procurement, standing offers and supply arrangements, or when otherwise entering into contracts. In addition, PWGSC may make assessments of ineligibility at any time on PWGSC's own initiative, upon receiving a request from a supplier to conduct an assessment of the supplier's ineligibility, upon receiving a third party complaint or upon receiving a request from a department, agency or other federal entity to which this policy applies.

6.2 Determination of ineligibility

PWGSC will be responsible for the administration of the determination of ineligibility (which includes, without limitation, gathering all information required and determining whether a decision of the Registrar is required). Moreover, the Registrar will make the decisions as to whether notices regarding ineligibility (which includes, without limitation, a Notice of Intention to Declare Ineligible) are issued and whether a supplier is ineligible.

The Registrar will determine that a supplier is ineligible if any of the Material Events provided in the Material Event Chart is found to apply in respect of the supplier.

If either of the following conditions apply:

  • 6.2.1 the Registrar makes a determination that a supplier is ineligible and a Notice of Ineligibility is given to the supplier; or
  • 6.2.2 the supplier is otherwise ineligible pursuant to this policy;

    the supplier will be ineligible for the duration of the Ineligibility Period (as determined pursuant to section 6.3), effective the date of delivery of the notice. The forgoing administration and determination will include the following:

  • 6.2.3 PWGSC is responsible for:
    • 6.2.3.1 conducting inquiries;
    • 6.2.3.2 coordinating the collection and assembly of relevant information about a supplier; and
    • 6.2.3.3 analyzing the information collected and supplied and providing a recommendation to the Registrar, when a determination is required;
  • 6.2.4 at any time before the Registrar makes a determination, PWGSC may request from a supplier information, supporting material and/or independent third party information pursuant to section 11 (which may include, without limitation, legal opinions) that PWGSC considers relevant to making a determination of ineligibility. Such information, supporting material and third-party expert information must be provided by the supplier to PWGSC within ten (10) business days of being requested by PWGSC, save and except if before the expiration of such ten (10) business day period, the supplier requests in writing an extension and PWGSC agrees to the same in writing. If the supplier does not submit such requested information, supporting material and third-party expert information or fails to retain such independent third party within the required period, the supplier will, upon notice from the Registrar, be ineligible and the failure to provide the same will be considered as an aggravating factor when determining the ineligibility period. The independent third party may, among other things, be requested to provide additional information with respect to the supplier and/or to validate any or all information provided by the supplier;
  • 6.2.5 a Notice of Intention to Declare Ineligible will be given to the supplier before the Registrar makes a determination of ineligibility;
  • 6.2.6 all Notices of Intention to Declare Ineligible will be sent to a supplier by registered mail or courier setting out:
    • 6.2.6.1 the full legal name of the supplier;
    • 6.2.6.2 the circumstances that PWGSC considers relevant to making a determination of ineligibility with respect to the supplier; and
    • 6.2.6.3 the time within which the supplier may file information and written submissions to the Registrar;
  • 6.2.7 a supplier which was given a Notice of Intention to Declare Ineligible, may deliver written information and submissions to the Registrar within the time specified in the Notice of Intention to Declare Ineligible. The written information and submissions may include any information the supplier considers relevant to the determination of ineligibility;
  • 6.2.8 if the Registrar intends on issuing a Notice of Ineligibility regarding a Material Event not listed in a Notice of Intention to Declare Ineligible:
    • 6.2.8.1 PWGSC will inform the supplier of such Material Event in writing; and
    • 6.2.8.2 the Registrar will not make a determination regarding ineligibility based on such Material Event until ten (10) business days following PWGSC sharing such information in writing (or such longer period, if before the expiration of such ten (10) business day period, the supplier requests in writing an extension and PWGSC agrees to the same in writing);
    PWGSC notes in this regard that this period is being provided so as to ensure that a supplier has an ability to make submissions before the Registrar makes a determination;
  • 6.2.9. a Notice of Ineligibility will be given to the supplier if the Registrar makes a determination of ineligibility, and ineligibility is effective as of the date that notice is given;
  • 6.2.10 when making a determination, the Registrar will consider and may rely on certifications, declarations or other information from a supplier, independent third parties (as contemplated hereunder) or other third parties received before making a determination, but such certifications, declarations or other information will not be binding and determinative of an issue;
  • 6.2.11 the Registrar is solely responsible for making the determination as to whether a Notice of Intention to Declare Ineligible is to be issued and, thereafter, if there is a determination of ineligibility. PWGSC, however, will determine whether to seek the decision of the Registrar in this regard. When PWGSC makes such a decision, PWGSC will consider and may rely on certifications, declarations or other information from a supplier, independent third parties (as contemplated hereunder) or other third parties received before making a determination, but such certifications, declarations or other information will not be binding and determinative of an issue; and
  • 6.2.12 the period of ineligibility will be determined in accordance with section 6.3 of this policy.
  • 6.2.13 If there are multiple Material Events for one supplier, PWGSC or the Registrar, as the case may be, may:
    • 6.2.13.1 consider each such Material Event individually;
    • 6.2.13.2 make an individual determination of ineligibility for each such Material Event;
    • 6.2.13.3 determine individual periods of ineligibility for each such Material Event, with the multiple events being considered an aggravating factor when making each determination; and
    • 6.2.13.4 permit such periods of ineligibility to run consecutively.
    A contracting authority may, in Canada's discretion, delay award of a contract while a determination of ineligibility is underway.

6.3 Period of ineligibility

  • 6.3.1 The period of ineligibility will begin on the date that the Notice of Ineligibility is delivered and will end on:
    • 6.3.1.1 for ineligibility which resulted from a Material Event described in paragraph (a) of the Material Event Chart, the date the supplier regains capacity to contract with Canada (if ever);
    • 6.3.1.2 for ineligibility which resulted from a Material Event described in paragraph (i) of the Material Event Chart, the date the sanction is no longer applicable (if ever); and
    • 6.3.1.3 for ineligibility related to any and all other Material Events, the date determined by the Registrar considering, among other things:
      • 6.3.1.3.1 information provided to the Registrar by PWGSC, which will include, without limitation:
        • 6.3.1.3.1.1 written certifications, declarations or other information provided by the supplier to PWGSC before the delivery of the Notice of Ineligibility;
        • 6.3.1.3.1.2 any other information that PWGSC provides to the Registrar or which the Registrar requests from PWGSC (which may include, without limitation, court decisions and information provided by law enforcement agencies and Canada); and
        • 6.3.1.3.1.3 all independent third party information required to be provided hereunder; and
      • 6.3.1.3.2 the ineligibility period guidelines contained in Appendix 3;
    with such date being no more than ten (10) years from the delivery of the Notice of Ineligibility.
  • 6.3.2 Within ten (10) business days of the Registrar making a determination pursuant to section 6.3.1.3, as to an ineligibility period, a notice will be given to the supplier by registered mail or courier providing the period of ineligibility and, if applicable, that the supplier has a right to a limited review pursuant to section 8 of this policy.
  • 6.3.3 a supplier which was given a Notice of Ineligibility, may deliver written information and submissions to the Registrar within ten (10) business days of being given Notice. The submissions may include any information the supplier considers relevant to the reconsideration or reduction of the period of ineligibility;
  • 6.3.4 The Registrar will consider the submission of the supplier made pursuant to subsection 6.3.3 with respect to period of ineligibility and may, at the Registrar's discretion, reconsider or reduce the period of ineligibility;
  • 6.3.5 Unless a determination is rescinded further to a limited review under section 8 or reconsidered or reduced pursuant to section 6.3.4 or section 6.6, the Registrar's determination is final and binding on a supplier. This said, a supplier may, at any time following thirty-six (36) months from the delivery of the Notice of Ineligibility, request to have the ineligibility period suspended by way of an administrative agreement, in accordance with section 10 of this policy. To initiate this process, the supplier must submit a request to the Registrar for consideration.
  • 6.3.6 The foregoing method of determination was established to allow the Registrar flexibility in determining the appropriate period in the circumstances, while ensuring that maximum periods are not exceeded and ensuring that the Registrar has the required information to make an informed decision.

6.4 Supplier initiated request for an assessment of ineligibility

A supplier may, at any time and from time to time, submit a written request to the Registrar for an assessment of the supplier's ineligibility. PWGSC and, thereafter, the Registrar will proceed with an assessment of the supplier's ineligibility as provided in section 6.2 of this policy. The supplier's request should include all relevant information (which may include, without limitation, information regarding convictions) relating to Material Events that may result in ineligibility under this policy. Moreover, if:

  • 6.4.1 an affiliate is subject to a Material Event listed in paragraph (f),(g) or (h) of the Material Event Chart, the supplier must demonstrate that it did not direct, influence, authorize, assent to, acquiesce in or participate in any action or omission, which directly or indirectly enabled the underlying action(s) or omission(s) that relate to the offence where the supplier knew or ought to have known that its affiliate was involved in the offence; and
  • 6.4.2 a director, manager or senior officer of the supplier is ineligible to be awarded a contract or is otherwise suspended under this policy, the supplier must demonstrate that such director, manager or senior officer will not have an opportunity to direct or influence the supplier;

in each case, failing which the supplier will, upon notice from the Registrar, be ineligible and the failure to provide the same will be considered as an aggravating factor when determining the ineligibility period.

6.5 Effect of determination

Upon a determination that a supplier is ineligible under this policy:

  • 6.5.1 PWGSC will enter the name of the supplier in PWGSC's Integrity Database as an ineligible supplier;
  • 6.5.2 if the supplier is not an individual, PWGSC will also publish the name of the supplier on PWGSC's public Ineligibility and Suspension List, together with the supplier's address, and the period of ineligibility that applies to the supplier;
  • 6.5.3 subject to the Public Interest Exception being invoked in a particular transaction:
    • 6.5.3.1 a response to a competitive solicitation from an ineligible supplier will be declared non-responsive and will receive no further consideration; and
    • 6.5.3.2 an ineligible supplier is unable to enter into a contract awarded through a non-competitive process; and
  • 6.5.4 with at least two (2) weeks advance notice from a contracting authority to the supplier, a contracting authority may terminate any or all of the supplier's contracts that are subject to this policy. For greater clarity, the foregoing right extends to each contracting authority, individually. During the advance notice period:
    • 6.5.4.1 the supplier may give the relevant contracting authority written representations as to reasons why such contract(s) should not be so terminated;
    • 6.5.4.2 the Registrar may request the supplier to enter into an administrative agreement with the Registrar as an alternative to termination, all on such terms and conditions as the Registrar considers necessary to safeguard the integrity of government contracting and real property transactions; and
    • 6.5.4.3 if there is an administrative agreement executed between the supplier and the Registrar or the contracting authority determines that the reasons provided pursuant to subsection 6.5.4.1 are persuasive, the contracting authority may revoke the advance notice and associated termination of any or all such contracts upon written notice to the supplier.

    Any and all such terminations will be deemed to be terminations for default of the supplier, with Canada (which includes, without limitation, Crown corporations and other Crown entities) paying no costs, expenses, damages, lost profits or other amounts related to the termination. For greater clarity, Canada will remain liable to pay for any and all services or goods already received before the termination. A termination for default does not restrict Canada's right to exercise any and all other remedies that may be available against the supplier.

6.6 Pardons

  • 6.6.1 At any time a supplier may provide PWGSC with sufficient information in writing to demonstrate that the supplier or its affiliate, as case may be, has:
    • 6.6.1.1 with respect to an offence related to a Material Event:
      • 6.6.1.1.1 been granted an absolute discharge in respect of the offence, or has been granted a conditional discharge in respect of the offence and those conditions have been satisfied;
      • 6.6.1.1.2 been granted a pardon under Her Majesty's royal prerogative of mercy;
      • 6.6.1.1.3 been granted a pardon under section 748 of the Criminal Code;
      • 6.6.1.1.4 received a Record Suspension ordered under the Criminal Records Act;
      • 6.6.1.1.5 been granted or issued a pardon under the Criminal Records Act, as that Act read immediately before March 13, 2012; or
      • 6.6.1.1.6 had the conviction overturned; and
    • 6.6.1.2 with respect to a Similar Provincial Offence, benefited from a provincial measure that is similar to any of the pardons or overturning of the conviction described in subsections 6.6.1.1.1 to subsections 6.6.1.1.6 above; and
    • 6.6.1.3 with respect to a Similar Foreign Offence, benefited from a foreign measure that is similar to any of the pardons or overturning of a conviction described in subsections 6.6.1.1.1 to subsections 6.6.1.1.6 above.
  • 6.6.2 If PWGSC receives such sufficient information, and such discharge, record suspension or pardon has not been revoked nor has ceased to have effect, as the case may be, the offence will not be considered by the Registrar in making a determination of ineligibility or, if the supplier has already been declared ineligible, the determination of ineligibility will be reconsidered by the Registrar (with any new determination being effective as of the date that the Registrar makes such new determination). Moreover, it is the sole responsibility of the supplier to provide such sufficient information to PWGSC and any new determination will not have retroactive effect.

7. Suspension—Professional misconduct and commercial integrity

7.1 Suspension

  • 7.1.1 If the Registrar determines, in the Registrar's discretion, that there is a professional misconduct or acts or omissions of the supplier which adversely reflect on the commercial integrity of the supplier, the Registrar may, in Registrar's discretion and upon giving a supplier a Notice of Suspension, suspend a supplier from participation in, entering into and being awarded procurements, standing offers, supply arrangements, contracts and other instruments with Canada for the Suspension Period (see definitions). The effect of the suspension will be the same as the effect of ineligibility described in subsection 6.5, save and except that the supplier will be listed on the integrity database as a suspended supplier and there will be no right to terminate contracts pursuant to section 6.5.4.

    The following charges of the supplier or proceedings against the supplier may, in the Registrar's discretion, be considered as evidence of such misconduct, acts or omissions:

    • 7.1.1.1 any of the offences identified in paragraphs (a), (b) or (c) of the Material Event Chart;
    • 7.1.1.2 a Provincial Offence and the Registrar determines, in the Registrar's discretion, that such Provincial Offence is a Similar Provincial Offence to the offences listed in subsection 7.1.1.1 above; or
    • 7.1.1.3 a Foreign Offence and the Registrar determines, in the Registrar's discretion, that such Foreign Offence is a Similar Foreign Offence to the offences listed in subsection subsection 7.1.1.1 above;
    each, with respect to such supplier and to the extent that the foregoing poses a risk to Canada.
  • 7.1.2 The Registrar may make separate suspension determinations with respect to the same supplier based on different events (which may include, without limitation, different charges).

7.2 Notice of intention to suspend

  • 7.2.1 If the Registrar intends on suspending a supplier, in advance of issuing a Notice of Suspension, the Registrar will send a Notice of Intention to Suspend to the supplier by registered mail or courier, setting out:
    • 7.2.1.1 the full legal name of the supplier;
    • 7.2.1.2 the basis for the suspension (which may include, without limitation, the charge(s) or proceeding that the Registrar considers relevant to a potential suspension); and
    • 7.2.1.3 the time within which the supplier may present information and written submissions to the Registrar.
  • 7.2.2 Upon delivery of a Notice of Intention to Suspend, a supplier may present written submissions to the Registrar as to why it should not be suspended, within the time specified by the Registrar. The submissions may include any information the supplier considers relevant, including but not limited to any remedial measures undertaken by the supplier to address the cause(s).
  • 7.2.3 If the Registrar intends on issuing a Notice of Suspension based on evidence of misconduct, acts or omissions not listed in a Notice of Intention to Suspend:
    • 7.2.3.1 the Registrar will inform the supplier of such evidence; and
    • 7.2.3.2 the Registrar will not make a determination regarding suspension based on such evidence until ten (10) business days following PWGSC sharing such information (or such longer period, if before the expiration of such ten (10) day period, the supplier requests in writing an extension and PWGSC agrees to the same in writing);
    • 7.2.3.3 PWGSC notes in this regard that this period is being provided so as to ensure that a supplier has an ability to make submissions before the Registrar makes a determination of suspension.

7.3 Decision process

The Registrar will consider the information and submissions provided to PWGSC and the Registrar in writing, prior to deciding whether a suspension is warranted in the circumstances. A decision to suspend will be based on whether the Registrar determines, in the Registrar's discretion, that doing business with the supplier poses a risk to Canada. There will be deemed a risk, if the supplier does not present information or written submissions within the time periods prescribed in the Notice of Intention to Suspend and/or fails to retain a third party where requested by the Registrar.

8. Limited review—Ineligibility as a result of the actions of affiliates

9. Public interest exception—Override ineligibility and suspension

10. Administrative agreements

10.1 Discretionary administrative agreements

  • 10.1.1 The Registrar may, in the Registrar's discretion, enter into administrative agreements with a suspended or ineligible supplier:
    • 10.1.1.1 to suspend the period of a supplier's ineligibility;
    • 10.1.1.2 in lieu of or stay a suspension;
    • 10.1.1.3 in lieu of terminating an existing contract due to a determination of ineligibility; or
    • 10.1.1.4 as a condition of entering into a contract under a Public Interest Exception.
  • 10.1.2 While a supplier may request an administrative agreement after thirty six (36) months from the delivery of the Notice of Ineligibility, in order for the request to be considered, the supplier is required to demonstrate that it cooperated with law enforcement authorities (if applicable) and/or has undertaken remedial action(s) to address the wrongdoing that led to the supplier's ineligibility.
  • 10.1.3 For greater clarity, the Registrar's decision to enter into an administrative agreement is assessed on a case-by-case basis, considering the specific facts, relevant factors in the circumstances (which includes, without limitation, ethical considerations), and may take different periods of time to assess.
  • 10.1.4 The Registrar may, in the Registrar's discretion, accept any or all of a remediation agreement entered into by a supplier pursuant to section 715.3 to section 715.43 of the Criminal Code to be an administrative agreement pursuant to this policy, with any necessary changes, provided:
    • 10.1.4.1 the Registrar may require additional terms and conditions, that the Registrar considers reasonable in the circumstances; and
    • 10.1.4.2 the supplier enters into a written agreement with the Registrar confirming the foregoing.

10.2 Administrative agreements covering suspension

  • 10.2.1 As an alternative to imposing a suspension, the Registrar may, in the Registrar's discretion, enter into an administrative agreement with a supplier, pursuant to section 10.1 in this policy. In addition to all requirements of the administrative agreement section 10.1, such an administrative agreement will provide:
    • 10.2.1.1 measures that assure that the supplier will conduct business with Canada in an ethical and responsible manner;
    • 10.2.1.2 if applicable, that the agreement will terminate if the supplier provides PWGSC with sufficient evidence that related charges were dropped or withdrawn or there was a declaration or finding of innocence; and
    • 10.2.1.3 if applicable, if the supplier provides PWGSC with sufficient evidence that related charges were discontinued, suspended or stayed, the administrative agreement will remain in effect for a period of 12 months following this decision and will terminate in accordance with the provisions of the agreement. If the charges are reintroduced during the 12 month period, the administrative agreement will continue for the duration of the legal proceedings.
  • 10.2.2 The existence of an administrative agreement will be made public, while the content of the agreement will remain confidential to the extent permitted by law.
  • 10.2.3 Such administrative agreements may be entered into before or after a Notice of Suspension and a supplier may request, at any time, to enter into an administrative agreement for purposes of staying or avoiding a suspension.

10.3 Standard terms

Administrative agreements will provide:

  • 10.3.1 that upon a material breach of any term or condition of the administrative agreement, as determined by the Registrar, the Registrar may terminate the administrative agreement;
  • 10.3.2 that administrative agreements remain in effect until the earlier of the date when:
    • 10.3.2.1 all obligations thereunder have been fully discharged by the supplier to the satisfaction of the Registrar; and
    • 10.3.2.2 the agreement is terminated by a party to the administrative agreement as provided for therein;
  • 10.3.3 that any termination of an administrative agreement prior to the expiration or early termination of the related ineligibility or suspension period will automatically, as of the date of such termination:
    • 10.3.3.1 reinstate any period of ineligibility to be determined by the Registrar (not exceeding the Maximum Period of Ineligibility contained in the Material Event Chart), considering the criteria provided for herein; and
    • 10.3.3.2 reinstate any period of suspension;
  • 10.3.4 that administrative agreements will have no retroactive effect nor will they rectify or otherwise correct any actions of a supplier during any period of ineligibility or suspension before the entering into of an administrative agreement. For greater clarity, subject to the terms of the administrative agreement, for any solicitation commenced prior to the entering into force of the administrative agreement, the effects of section 6.5.3 will apply; and
  • 10.3.5 at the Registrar's discretion, that a supplier will retain an independent third party to, among other things:
    • 10.3.5.1 monitor, certify, audit and provide opinions regarding the administrative agreement and the supplier's actions thereunder;
    • 10.3.5.2 provide information pertaining to the supplier for the purpose of determining whether a reduction is warranted to the period of the supplier's ineligibility; and
  • 10.3.6 at the Registrar's discretion, other terms and conditions, which may include, without limitation, terms and conditions relating to:
    • 10.3.6.1 separation of specific employees from management or programs;
    • 10.3.6.2 implementation or extension of compliance programs;
    • 10.3.6.3 employee training and information;
    • 10.3.6.4 outside auditing;
    • 10.3.6.5 access by PWGSC to specific documentation, information and records; and
    • 10.3.6.6 any other remedial or compliance measure that the Registrar considers to be in the public interest.

10.4 Ineligibility or suspension, and no administrative agreement

If the supplier is ineligible or suspended and refuses to enter into such an administrative agreement or the Registrar is not prepared to enter into an administrative agreement with the supplier, the supplier will remain ineligible or suspended, as the case may be.

11. The independent third party

11.4 Verification and the independent third party

  • 11.4.1 PWGSC may verify information provided by a supplier or relating to requirements under this policy, at any time. Moreover, in connection with an assessment of ineligibility or suspension, the Registrar may request in writing that a supplier retain an independent third party to validate any or all certifications or declarations relating to this policy. For greater clarity, but without limiting the generality of the foregoing, the independent third party may be required to, among other things:
    • 11.4.1.1 validate information provided by a supplier with respect to whether it directed, influenced, authorized, assented to, acquiesced in or participated in any action or omission, which directly or indirectly enabled the underlying action(s) or omission(s) that relate to an offence committed by their affiliate, where the supplier knew or ought to have known that its affiliate was involved in the offence;
    • 11.4.1.2 confirm convictions, charges, and proceeding related to Foreign Offence and/or a Provincial Offence;
    • 11.4.1.3 provide an opinion on whether a Foreign Offence is a Similar Foreign Offence;
    • 11.4.1.4 provide an opinion on whether a Provincial Offence is a Similar Provincial Offence;
    • 11.4.1.5 provide an opinion on whether an act or omission, if occurred in Canada, would likely lead to a specified conviction(s);
    • 11.4.1.6 to confirm the applicability or inapplicability, as the case may be, of any other circumstances described in the Material Event Chart; and
    • 11.4.1.7 with respect to a supplier that was previously ineligible pursuant to this policy, to provide a report on any measures have been put in place in order to avoid the re-occurrence of the types of wrongdoing that led to such ineligibility;

    in each case, in a form sufficient and acceptable to the Registrar. In addition, either the Registrar or PWGSC may request from a supplier additional information (including, without limitation, consent forms and other evidence sufficient to prove identity, ineligibility to contract and/or capacity to enter into a Contract or real property agreement with Canada).

  • 11.4.2 Such information, supporting material and third-party expert information will be provided by the supplier to PWGSC within ten (10) business days of being requested by PWGSC or the Registrar, as the case may be, save and except if before the expiration of such ten (10) business day period, the supplier requests in writing an extension and PWGSC, agrees to the same in writing.
  • 11.4.3 If and to the extent requested by the Registrar, the supplier must provide the requested information and must retain the independent third party, each within the time specified in the Registrar's request(s), failing which the Registrar may deem the supplier to be ineligible and any bid or offer non-responsive, without any further analysis pursuant to this policy.

12. Obligations with respect to first-tier subcontracting

12.1 Entering into contracts with ineligible first-tier subcontractors

  • 12.1.1 A supplier will not subcontract with a first-tier subcontractor, which is then ineligible or suspended under this policy, to perform work under a contract that the supplier has with Canada, save and except:
    • 12.1.1.1 if the supplier obtains advance written consent from the relevant Deputy Head or equivalent and provides a copy thereof to the Registrar; or
    • 12.1.1.2 if during the period from when an offer/bid is received to and including the date when the offer/bid is awarded, accepted or called-up, unbeknownst to the supplier any or all of the supplier's first-tier subcontractors are determined to be ineligible; in which case subsection 12.3 is applicable.
    • 12.1.1.3 Such consent may be sought by written request to the contracting authority. For greater clarity, the Deputy Head or equivalent may not provide such consent when the first-tier subcontractor has no capacity to contract with Canada pursuant to subsection 750(3) of the Criminal Code or is otherwise prohibited to contract with Canada pursuant to a sanction listed in paragraph (i) of the Material Event Chart.
  • 12.1.2 Suppliers may verify whether a first-tier subcontractor has been declared to be ineligible or suspended under this policy as follows:
    • 12.1.2.1 in the case of an individual, the supplier must send a written request to the Registrar, along with a signed consent form from the prospective first-tier subcontractor permitting PWGSC to disclose to the supplier information regarding the prospective first-tier subcontractor's status under this policy. The consent form is available online on the Forms page of the Integrity Regime website. The Registrar will, upon receipt of the written request and consent form, provide written confirmation of whether the prospective first-tier subcontractor is ineligible or suspended under this policy; and
    • 12.1.2.2 in the case of a prospective first-tier subcontractor that is not an individual, the supplier must consult the public Ineligibility and Suspension List, which provides a list of those non-individuals that are ineligible or suspended under this policy.
  • 12.1.3 A supplier that enters such a contract with a declared ineligible or suspended first-tier subcontractor, without written consent of the Deputy Head or equivalent, will, upon notice from the Registrar, be ineligible, with the period of ineligibility being determined in accordance with section 6.3 of this policy.

12.2 Ineligible first-tier subcontractors on an existing contract

If, after a contract is entered into or the related bid/offer is awarded or accepted, any or all of a supplier's first-tier subcontractors become ineligible, the supplier:

  • 12.2.1 will, as soon as the same becomes known by the supplier, terminate all such subcontracts with the first-tier subcontractors which have no capacity to contract with Canada pursuant to subsection 750(3) of the Criminal Code or which are otherwise prohibited to contract with Canada pursuant to a sanction listed in paragraph (i) of the Material Event Chart; failing which, upon notice of the contracting authority, the contract will terminate; and
  • 12.2.2 may choose to maintain or terminate any or all other first-tier subcontracts which are not so terminated pursuant to subsection 12.2.1.

12.3 Contracts awarded with first-tier subcontractors that became ineligible or suspended between submission of an offer/bid and contract awarded, accepted or called-up

If, during the period beginning on the day when an offer/bid is received and ending on the day when the offer/bid is awarded, accepted or called-up :

  • 12.3.1 any or all of a supplier’s first-tier subcontractors become ineligible or suspended.
  • 12.3.2 the offer/bid awarded, accepted or called-up, the supplier’ and
  • 12.3.3 the supplier did not know of the ineligibility or suspension and a reasonable person of the circumstances would not have known of the same before the offer/bid is awarded, accepted or called-up

    then the supplier will:

  • 12.3.4 as soon as the same becomes known by the supplier, terminate all such subcontracts that were entered into with first-tier subcontractors which have no capacity to contract with Canada pursuant to subsection 750(3) of the Criminal Code or which are otherwise prohibited to contract with Canada pursuant to a sanction listed in paragraph (i) of the Material Event Chart; failing which, upon notice of the contracting authority, the contract will terminate; and
  • 12.3.5 within twenty two (22) business days of receiving notice to terminate from the relevant Deputy Head or equivalent, terminate all such subcontracts contained in such notice; failing which, upon notice of the contracting authority, the contract will terminate; the issuing of such notice will be made by the Deputy Head or equivalent, in their respective discretion; and
  • 12.3.6 may choose to maintain or terminate any or all other first-tier subcontracts which are not so terminated pursuant to subsection 12.3.4 or subsection 12.3.5. For greater clarity, the termination of subcontracts pursuant to subsection 12.3.4, subsection 12.3.5 and subsection 12.3.6 may occur at any time during the term of a subcontract and will not affect or otherwise alter the obligations of the supplier pursuant to the resulting contract or Canada's obligation to pay thereunder.

12.4 Supplier/contracting authority review before contract award, acceptance or call-up

The contracting authority may advise a supplier identified as the top-ranked bidder/offeror according to the evaluation criteria that it is required  (or the supplier may decide) to verify the status of all proposed first-tier subcontractors before its bid/offer is awarded, accepted or called-up. If requested by the contracting authority, the supplier must advise the contracting authority in writing within five (5) business days of the request, of the results of the integrity verification.

In each case, if:

  • 12.4.1 the verification reveals that a proposed first-tier subcontractor was determined to be ineligible or suspended after the bid/offer was received; and
  • 12.4.2 the contract has not then been awarded, accepted or called-up, the supplier may give notice in writing to the contracting authority that the supplier is withdrawing its bid/offer and such bid/offer will be withdrawn as of the date of the notice. For greater clarity, if the supplier fails to withdraw and the contract is awarded, the supplier may need to terminate all such subcontracts pursuant to either or both subsection 12.3.1.1 or subsection 12.3.1.2 and nonetheless complete the contract.

13. Disclosure

13.1 Initial disclosure

All suppliers, regardless of their status under this policy, will submit the following information to the contracting authority when responding to a procurement, applying for a standing offer or supply arrangement and, to the extent not included as part of a procurement, standing offer or supply arrangement process, before entering into a contract or other instrument:

  • 13.1.1 the name of the owner for a sole proprietor;
  • 13.1.2 the names of all owners and directors for a private corporation;
  • 13.1.3 the names of all directors for a publically traded corporation;
  • 13.1.4 the names of the partners for a general partnership;
  • 13.1.5 the name of the general partner (and, if a corporation, together with the owners and directors thereof) for a limited and a limited liability partnership; and
  • 13.1.6 the names of the trustee for a trust (and, if a corporation, together with the owners and directors thereof);

with all the parties to a joint venture being required to submit the foregoing information. If, however, the foregoing information has not been received by the time the evaluation of bids or offers is completed or has not been received in a procurement process or real property transaction where no bid/offer will be submitted, the contracting authority will inform the supplier of a time within which to provide the information. Failure to provide the information within such specified period will render a bid or offer non-responsive, or the supplier otherwise disqualified for award of a contract.

13.2 Continuing obligation to disclose during the execution of a contract

The supplier will provide written notice of any:

  • 13.2.1 change to the information provided pursuant to subsection 13.1 (which includes, without limitation, a change which is the result of a transfer or assignment);
  • 13.2.2 new charge with respect to the supplier; and
  • 13.2.3 any new conviction or other circumstance with respect to itself, its affiliates and its first-tier subcontractors;

each to the extent relevant to this policy. Such will be provided to PWGSC:

  • 13.2.4 within five (5) business days of any such change for all procurements, standing offers, supply arrangements, contracts and other instruments not executed, entered into or otherwise awarded; and
  • 13.2.5 within twenty-two (22) business days of any such change for all procurements, standing offers, supply arrangements, contracts and other instruments executed, entered into or otherwise awarded.

14. Similar offences

The Registrar will consider the following when making a determination as to whether a Foreign Offence is a Similar Foreign Offence, as the case may be:

15. General anti-avoidance provisions

16. Registrar and Public Works and Government Services Canada's contact information for purposes of this policy

17. Transitional provision

This policy does not apply in respect of any contracts (which includes, without limitation, solicitations that have not been awarded) that reference the July 3, 2015 Ineligibility and Suspension Policy or the April 4, 2016 Ineligibility and Suspension Policy, save and except that:

For greater clarity, other than as provided for above, the July 3, 2015 Ineligibility and Suspension Policy and the April 4, 2016 Ineligibility and Suspension Policy will continue to be effective for all contracts that incorporate the same.

18. Notices

All notices given pursuant to this policy will be in writing and will be given between 9:00 a.m. and 5:00 p.m. on a business day and will be delivered by hand, registered mail, facsimile or sent by electronic mail. Any such notice given in accordance with the above requirements will be deemed to have been given, if sent by registered mail, on the fifth business day following the date of such mailing or, if delivered by hand, facsimile or electronic mail, on the business day on which it was delivered or sent, as the case may be.

Appendix 1—Definitions

For the purposes of this policy, the following definitions apply:

acquisition card:
is a charge card issued under a contract between a card issuer and Canada for the procurement and payment of goods and services for authorized official government business; (Carte d'achat)
administrative agreement:
is a negotiated agreement between a supplier and the Registrar pursuant to this policy; (Entente administrative)
affiliate:

one person is an affiliate of another person if:

  1. one person controls or exercises significant influence over the other person;
  2. a third person controls or exercises significant influence over both persons;
  3. both persons are under common control or under common significant influence; or
  4. a third person controls or exercises significant influence over each persons and the third person who controls or exercises significant influence over one person is affiliated with the third person who controls or exercises significant influence over the other person. In addition:
  5. when two or more corporations amalgamate or merge, each such corporations and any new corporation will be deemed to be "affiliates" with each other; and
  6. any predecessors are also deemed to have been affiliated with each other where they would have been affiliated with each other immediately before the amalgamation or merger if:
    1. the new corporation had existed immediately before that time; and
    2. the persons who were the shareholders of the new corporation immediately after that time had been the shareholders of the new corporation immediately before that time; (Affiliée)
business day:
means any day other than a Saturday, a Sunday, a statutory holiday in any province or territory or a federal statutory holiday; (Jour ouvrable)
contract:
means an agreement between a contracting authority and a person or firm to provide a good, perform a service, sell or dispose of a good, or construct a work, or a real property agreement between a contracting authority and a person or firm for appropriate consideration; (Contrat)
contracting authority:
with respect to a contract, bid or offer that is subject to this policy, means the contracting authority for the relevant department, agency or other federal entity that voluntarily adopts this policy (which includes, without limitation, real property authority); (Autorité contractante)
control:

means:

  1. direct control, such as where:
    1. a person controls a body corporate if securities of the body corporate to which are attached more than 50 per cent of the votes that may be cast to elect directors of the body corporate are beneficially owned by the person and the votes attached to those securities are sufficient, if exercised, to elect a majority of the directors of the body corporate;
    2. a person controls a corporation that is organized on a cooperative basis if the person and all of the entities controlled by the person have the right to exercise more than 50 per cent of the votes that may be cast at an annual meeting or to elect the majority of the directors of the corporation;
    3. a person controls an unincorporated entity, other than a limited partnership, if more than 50 per cent of the ownership interests, however designated, into which the entity is divided are beneficially owned by that person and the person is able to direct the business and affairs of the entity;
    4. the general partner of a limited partnership controls the limited partnership; and
    5. a person controls an entity if the person has any direct or indirect influence that, if exercised, would result in control in fact of the entity;
  2. deemed control, such as where a person who controls an entity is deemed to control any entity that is controlled, or deemed to be controlled, by the entity; and
  3. indirect control, such as where a person is deemed to control, within the meaning of paragraph (a) or (b), an entity where the aggregate of:
    1. any securities of the entity that are beneficially owned by that person; and
    2. any securities of the entity that are beneficially owned by any entity controlled by that person;
  4. is such that, if that person and all of the entities referred to in paragraph (c)(ii) that beneficially own securities of the entity were one person, that person would control the entity.
For greater clarity, indicia of control, whether direct or indirect, exercised or not, include, but are not limited to, common ownership, common management, identity of interests (often found in members of the same family), shared facilities and equipment or common use of employees; (Contrôle)
derivatives agreement:
means a financial agreement whose obligations are derived from, referenced to, or based on, one or more underlying reference items such as interest rates, indices, currencies, commodities, securities or other ownership interests, credit or guarantee obligations, debt securities, climatic variables, bandwidth, freight rates, emission rights, real property indices and inflation or other macroeconomic data and includes:
  1. a contract for differences or a swap, including a total return swap, price return swap, default swap or basis swap;
  2. a futures agreement;
  3. a cap, collar, floor or spread;
  4. an option; and
  5. a spot or forward; (Entente relative à un instrument dérivé)
federal immovable" or "federal real property:
means an immovable belonging to Canada, and includes an immovable of which Canada has the power to dispose; (Immeuble fédéral)
financial contract:
means:
  1. a derivatives agreement, whether settled by payment or delivery, that:
    1. trades on a futures or options exchange or board, or other regulated market; or
    2. is the subject of recurrent dealings in the derivatives markets or in the over-the-counter securities or commodities markets;
  2. an agreement to:
    1. borrow or lend securities or commodities, including an agreement to transfer securities or commodities under which the borrower may repay the loan with other securities or commodities, cash or cash equivalents;
    2. clear or settle securities, futures, options or derivatives transactions; or
    3. act as a depository for securities;
  3. a repurchase, reverse repurchase or buy-sell back agreement with respect to securities or commodities;
  4. a margin loan in so far as it is in respect of a securities account or futures account maintained by a financial intermediary;
  5. any combination of agreements referred to in any of paragraphs (a) to (d);
  6. a master agreement in so far as it is in respect of an agreement referred to in any of paragraphs (a) to (e);
  7. a master agreement in so far as it is in respect of a master agreement referred to in paragraph (f);
  8. a guarantee of, or an indemnity or reimbursement obligation with respect to, the liabilities under an agreement referred to in any of paragraphs (a) to (g); and
  9. an agreement relating to financial collateral, including any form of security or security interest in collateral and a title transfer credit support agreement, with respect to an agreement referred to in any of paragraphs (a) to (h); (Contrat financier)
first-tier subcontract:
means:
  1. a contract made between the supplier and a person (other than Canada) for carrying out or supply goods for part or all of another contract between the supplier and Canada (which may include, without limitation, all the activities, services, goods, matters and things required to be done, delivered or performed by the supplier under a contract or real property agreement); and
  2. a sublease made between the supplier and a person (other than Canada) for part of or all of premises leased by Canada to the supplier; (Premier contrat de sous‑traitance)
first-tier subcontractor:
means a contractor to a first-tier subcontract; (Premier sous‑traitant)
Foreign Offence:
means a civil judgment, regulatory offence, decision, decree, directive, order or consent agreement or criminal judgment in a jurisdiction other than Canada or such other similar enforceable decision pursuant to the authority of such other jurisdiction; (Infraction étrangère)
immovable:
means:
  1. in the Province of Quebec, an immovable within the meaning of the civil law of the Province of Quebec, and includes the rights of a lessee in respect of such an immovable; and
  2. in jurisdictions outside Canada, any property that is an immovable within the meaning of the civil law of the Province of Quebec, and includes the rights of a lessee in respect of any such property; (Immeuble)
Ineligibility and Suspension List:
is the public list of companies that have been determined to be ineligible or suspended by the Registrar under this policy; (Liste de fournisseurs inadmissibles et suspendus)
Integrity Database:
is a list to be maintained by PWGSC that records all determinations of ineligibility and suspension, including companies and individuals, and the period of ineligibility that applies to that supplier; (Base de données sur l'intégrité)
insurance contract:
means:
  1. a policy or contract of insurance (other than a warranty in respect of the quality, fitness or performance of tangible property, where the warranty is supplied to a person who acquires the property otherwise than for resale) that is issued by an insurer, including :
    1. a policy of reinsurance issued by an insurer,
    2. an annuity contract issued by an insurer, or a contract issued by an insurer that would be an annuity contract except that the payments under the contract:
      1. are payable on a periodic basis at intervals that are longer or shorter than one year; or
      2. vary in amount depending on the value of a specific group of assets or on changes in interest rates; and
    3. a contract issued by an insurer for all or part of the insurer's reserves which vary in amount depending on the value of a specified group of assets; and
  2. a policy or contract in the nature of accident and sickness insurance, whether this policy is issued, or the contract is entered into, by an insurer; (Contrat d'assurance)
inter-governmental agreement:
means an agreement that involves or is made between Canada and one or more governments, including but not limited to foreign states, provincial, territorial and municipal governments or provincial or municipal crown corporations, or an agreement between one or more governments to which Canada has declared itself to be bound; (Entente intergouvernementale)
intra-governmental agreement:
means an agreement that involves or is made between different departments, agencies or other federal entities of the Government of Canada; (Entente intragouvernementale)
licence:
means any right to use or occupy real property or an immovable, other than:
  1. a real right within the meaning of the civil law of the Province of Quebec and the rights of a lessee under a lease of an immovable, and
  2. an interest in land; (Permis)
Notice of Ineligibility:
is a notice by the Registrar to a supplier declaring the supplier ineligible to be awarded of a contract or real property agreement for a specific period of time; (Avis d'inadmissibilité)
Notice of Intention to Declare Ineligible:
is a notice by the Registrar to a supplier informing a supplier that it is being reviewed for a potential determination of ineligibility; (Avis d'intention de déclarer inadmissible)
Notice of Intention to Suspend:
is a notice by the Registrar to a supplier informing a supplier that it is being reviewed for a potential determination of suspension; (Avis d'intention de suspendre)
Notice of Suspension:
is a notice by the Registrar to a supplier declaring the supplier suspended from being able to be awarded a contract or real property agreement for a specific period of time; (Avis de suspension)
person:
means an individual, a body corporate, trust, partnership, fund, an unincorporated association or organization, the government of a foreign country or any political subdivisions thereof and any agency thereof; (Personne)
procurement process:
means:
  1. as it relates to goods and services, a series of public actions or steps taken by PWGSC, or any other government department, agency or other federal entity, and which are directed at acquiring goods or services, either through a competitive public process or a sole source process, where permissible, and which result in binding obligations on a supplier or suppliers of goods or services, but does not include activities occurring after an award has been made, such as contract administration or contract management;
  2. as it relates to real property agreements or transactions, a series of public actions or steps taken by PWGSC, or any other government department, agency or other federal entity, and which are directed at concluding: (i) a disposition or lease of federal real property or federal immovables; (ii) a grant or concessions of federal real property or federal immovables; (iii) an acquisition or lease of real property or immovables; (iv) a licence or transfer in relation to any licence acquired or given by Her Majesty in respect of federal real property or federal immovables. The term does not include any transaction or solicitation occurring after an award decision has been made such as administration or management; and
  3. as it relates to "construction contract", means a series of public actions or steps taken by PWGSC, or any other government department, agency or other federal entity, and which are directed at concluding a contract entered into for the construction, repair, renovation or restoration of any work except a vessel and includes (i) a contract for the supply and erection of a prefabricated structure, (ii) a contract for dredging, (iii) a contract for demolition, and (iv) a contract for the hire of equipment to be used in or incidentally to the execution of any contract referred to in this definition;
and includes without limitation, solicitation, invitation to tender, request for proposals, request for quotations and invitation to offer; (Processus d'approvisionnement)
Provincial Offence:
means a Provincial offence, whether in the form of a civil judgment, regulatory offence, decision, decree, directive, order or consent agreement (which includes, without limitation, those pursuant to securities legislation), criminal judgment or such other similar enforceable decision pursuant to the authority of a Province; (Infraction provinciale)
real property:
means land in any province other than Quebec, and land outside Canada, including mines and minerals, and buildings, structures, improvements and other fixtures on, above or below the surface of the land, and includes an interest therein. The term is to be given the meaning ascribed to it in the Federal Real Property and Federal Immovables Act; (Bien immobilier)
real property agreement:
includes offer to purchase, offer to sale, agreement of purchase and sale, leases and licences; (Accord immobilier)
Registrar:
means the Assistant Deputy Minister of Public Services and Procurement Canada responsible for this Policy; (Registraire)
representative:
in respect of an organization, means a director, partner, employee, member, agent or contractor of the organization; (Représentant)
senior officer:
means a representative who plays an important role in the establishment of an organization's policies or is responsible for managing an important aspect of the organization's activities and, in the case of a body corporate, includes a director, its chief executive officer and its chief financial officer; (Cadre supérieur)
service contract:
means a contract for the provision of a service but does not include an agreement whereby a person is employed as an officer, clerk or employee of Canada; (contrat de service)
significant influence:
means where one or more of the following apply:
  1. the person has decision rights or veto rights over decisions pertaining to the strategic direction of an entity. The strategic direction includes, but is not limited to, decisions pertaining to:
    1. business plan;
    2. nature of the business;
    3. financial or material transactions;
    4. funds or assets;
    5. trusts;
    6. profit-sharing, share option, bonus or any other incentive related process; or
    7. investments;
  2. the person has decision rights or veto rights over decisions pertaining to the appointment or removal of one or more directors or trustees;
  3. the person owns assets or has direct or indirect influence over an entity that, if exercised, would influence the strategic direction of an entity;
  4. the person directs or influences the day to day management and direction of an entity; and
  5. the person is consulted on the strategic direction of an entity and the recommendations provided influence the outcome of decisions made by the directors or trustees; (Influence notable)
Similar Foreign Offence:
means a Foreign Offence which is similar to an offence listed in paragraphs (a), (b)(i), (ii), (iii), (iv), (vi), (ix) and (x) or (c) of the Material Event Chart; (Infraction étrangère de même nature)
Similar Provincial Offence:
means a Provincial Offence which is similar to an offence listed in section 239 of the Income Tax Act, section 327 of the Excise Tax Act, subsection 14(1), with respect to sections 5 and 7, of the Lobbying Act, and paragraph 80(1)(b) (defraud Her Majesty), paragraph 80(1)(d) (False entry, certificate or return), section 81(Bribes Offered or Accepted) (False entry, certificate or return), subsection 80(2) (Fraud against Her Majesty), or section 154.01 (Fraud against Her Majesty) of the Financial Administration Act; (Infraction provinciale de même nature)
supplier:
means any person that:
  1. submits a bid/offer for, or is awarded, or reasonably may be expected to submit a bid/offer for or be awarded, a contract or real property agreement with Canada;
  2. conducts or wishes to conduct business with Canada as a vendor, lessor, option or, licensor, purchaser, tenant or contractor; or
  3. conducts business with Canada as an agent or representative of another supplier,

where this policy applies; (Fournisseur)

supply contract:
means a contract for the purchase of articles, commodities, equipment, goods, materials or supplies and includes
  1. a contract for printing or for the reproduction of printed matter, and
  2. a contract for the construction or repair of a vessel; (Contrat d'approvisionnement)
Suspension period:
means the period from the day that the Registrar gives a Notice of Suspension to a supplier pursuant to section 7 of this policy to and including the earlier of:
  1. eighteen (18) months following such notice which can be longer if a judicial process is underway; and
  2. if applicable, the date that the Registrar determines that the professional misconduct or acts or omissions which adversely reflected on the commercial integrity of the supplier no longer apply or have been addressed to the satisfaction of the Registrar; (Période de suspension)
transaction value:
is the actual value of a contract, subcontract or real property agreement or, when unestablished, the maximum potential value of a contract, subcontract or real property agreement or of all contracts to be issued under a standing offer or supply arrangement, as estimated by Canada. Transaction value is stated in Canadian currency, or the equivalent value of the currency of a country other than Canada, and includes all options and applicable taxes. Transaction value is used for purposes only of determining application of this policy and does not imply that monies will be spent beyond a firm contractual commitment or that any option will be exercised. Where a Financial Limitation clause is used, the transaction value is that value; (Valeur transactionnelle)
transfer payment:
is a monetary payment, or a transfer of goods, services or assets made, on the basis of an appropriation, to a third party, including a Crown corporation, that does not result in the acquisition by Canada of any goods, services or assets. Transfer payments do not include investments, loans or guarantees. Transfer payments are categorized as:
  1. grants, which are transfer payments subject to pre-established eligibility and other entitlement criteria. A grant is not subject to being accounted for by a recipient nor normally subject to audit by the department. The recipient may be required to report on results achieved;
  2. contributions, which are transfer payments subject to performance conditions in a funding agreement. A funding agreement is a written agreement or instrument constituting an agreement between Canada and an applicant or a recipient setting out the obligations or understandings of both with respect to one or more transfer payments; or
  3. other transfer payments, which are transfer payments, other than a grant or contribution, based on legislation or other arrangement, which may be determined by a formula; (Paiement de transfert)

Appendix 2—Grounds—ineligibility/suspension

(1) The following chart (the "Material Event Chart") includes the events that will trigger the determination of ineligibility (each of such events is a "Material Event") and, as provided for in section 7.1 and when relating to certain charges, may be considered when determining a suspension:

  1. The supplier has a loss of capacity to contract with Her Majesty and to receive any benefit under a contract between Her Majesty and the supplier under subsection 750(3) of the Criminal Code, which, for greater clarity, relates to convictions of offences under: 
    1. paragraph 80(1)(d) (False entry, certificate or return), subsection 80(2) (Fraud against Her Majesty), or section 154.01 (Fraud against Her Majesty) of the Financial Administration Act; or
    2. section 121 (Frauds on the government and Contractor subscribing to election fund), section 124 (Selling or purchasing office), section 380 (Fraud) for fraud committed against Her Majesty, or section 418 (Selling defective stores to Her Majesty) of the Criminal Code.
  2. The supplier has, in the past three (3) yearsFootnote *, been convicted of or pleaded guilty to any of the following offences:
    1. section 83.02, 83.03 and 83.04 (financing of terrorism), section 119 (Bribery of judicial officers, etc.), section 120 (Bribery of officers), section 123 (Municipal Corruption), section 279.01 (Trafficking in Persons), section 279.011 (Trafficking a Person Under Eighteen Years), subsection 279.02(1) (Receiving Benefit to Facilitate Adult Trafficking), subsection 279.02(2) (Receiving Benefit to Facilitate Child Trafficking), subsection 279.03(1) (Withholding/destroying Identity Documents to Facilitate Adult Trafficking), subsection 279.03(2) (Withholding/destroying Identity Documents to Facilitate Child Trafficking), section 346 (Extortion), sections 366 to 368 (Forgery and other offences resembling forgery), section 380 (Fraud – other than against Her Majesty), section 382 (Fraudulent manipulation of stock exchange transactions), section 382.1 (Prohibited insider trading), section 397 (Falsification of books and documents), section 422 (Criminal breach of contract), section 426 (Secret commissions), section 462.31 (Laundering proceeds of crime) or sections 467.11 to 467.13 (Participation in activities of criminal organization) of the Criminal Code;
    2. section 463 (Attempts, Accessories), section 464 (Counselling Offence That is Not Committed) or section 465 (Conspiracy) of the Criminal Code, each solely to the extent that it relates to an offence listed under subsection b(i) of the Material Event Chart;
    3. section 45 (Conspiracies, agreements or arrangements between competitors), section 46 (Foreign directives), section 47 (Bid rigging), section 49 (Agreements or arrangements of federal financial institutions), section 52 (False or misleading representation), or section 53 (Deceptive notice of winning a prize) of the Competition Act;
    4. section 239 (False or deceptive statements) of the Income Tax Act;
    5. section 327 (False or deceptive statements) of the Excise Tax Act;
    6. section 3 (Bribing a foreign public official), section 4 (Accounting), or section 5 (Offence committed outside Canada) of the Corruption of Foreign Public Officials Act;
    7. section 5 (Trafficking in substance), section 6 (Importing and exporting), or section 7 (Production of substance) of the Controlled Drugs and Substances Act;
    8. subsection 497 (2) (Offences requiring intent – dual procedure) of the Canada Elections Act;
    9. paragraph 80(1)(b) (defraud Her Majesty) or section 81(Bribes Offered or Accepted) of the Financial Administration Act;
    10. section 117 (trafficking in persons) or 118 (organizing entry into Canada) of the Immigration and Refugee Protection Act; or
    11. any offence under the Canada Labour Code. Part II and Part III.
  3. The supplier has, in the past three (3) yearsFootnote *, been convicted of or pleaded guilty to an offence pursuant to subsection 14(1), with respect to sections 5 or 7, of the Lobbying Act.
  4. The supplier, in the past three (3) yearsFootnote *:
    1. failed to terminate a first-tier subcontract within one (1) business day of when the supplier knew or ought to have known that a first-tier subcontractor lacks the capacity to receive any benefit under a contract with Canada, pursuant to subsection 750(3) of the Criminal Code; or
    2. entered into a contract with an ineligible or suspended first-tier subcontractor, unless:
      1. the supplier has the written advance approval to enter into such subcontract from the relevant Deputy Head or equivalent;
      2. in the case of an ineligible or suspended first-tier subcontractor that is an individual, PWGSC failed to identify that first-tier subcontractor as ineligible or suspended when the supplier requested an integrity verification from the Registrar pursuant to section 12;
      3. in the case of an ineligible or suspended first-tier subcontractor that is not an individual, the first-tier subcontractor's name was not included on the public Ineligibility and Suspension List at the time the supplier entered into that first-tier subcontract; or
      4. 1. the first-tier subcontractor becomes ineligible or suspended during the period from the date when the supplier submits the related bid or offer to and including the date when the related bid or offer is awarded, accepted or called-up; and 2. the supplier did not know of the ineligibility or suspension and a reasonable person in the circumstances would not have known of the same.
  5. The Registrar determines, in the Registrar’s discretion that the supplier has, at any time, provided certification or declaration to PWGSC in relation to this policy which is false or misleading, in a material respect.
  6. The supplier, or the supplier's affiliate, has, in the past three (3) yearsFootnote *,
    1. been convicted of a Foreign Offence, or pleaded guilty to a Foreign Offence, that the Registrar determines, in the Registrar's discretion, to be a Similar Foreign Offence, or
    2. agreed to a statement of facts,
    in relation to having committed an act or omission outside of Canada, and the Registrar determines, in the Registrar's discretion, that if such act or omission had occurred in Canada, it would likely lead to a conviction of an offence listed in paragraph (a), (b)(i), (ii), (iii), (iv), (vi), (ix) and (x), or (c) of the Material Event Chart. The Registrar will consider the actions or omission of affiliates only if the Registrar determines, in the Registrar's discretion, that the supplier directed, influenced, authorized, assented to, acquiesced to, or participated in those actions or omissions.
  7. The supplier, or the supplier's affiliate, has, in the past three (3) yearsFootnote *, either
    1. been convicted of, or pleaded guilty to, a Provincial Offence, or
    2. agreed to a statement of facts, in relation to having committed an act or omission in Canada, and the Registrar determines, in the Registrar's discretion, that such act or omission is similar to an act which would likely lead to a conviction for an offence listed in paragraph (a)(i), (b)(iv), (v), and (ix), or (c) of the Material Event Chart; or
    3. been convicted, or pleaded guilty, under provincial securities legislation relating to fraud, collusion or insider trading. The Registrar will consider the actions or omission of affiliates only if the Registrar determines, in the Registrar's discretion, that the supplier directed, influenced, authorized, assented to, acquiesced to, or participated in those actions or omissions. For greater clarity, the foregoing allows the Registrar, notwithstanding a decision not to proceed with an offence federally, to consider the underlying conduct.
  8. The supplier's affiliate, in the past three (3) yearsFootnote *, was convicted of or pleaded guilty to an offence identified in paragraphs (a), (b) or (c) of this Material Event Chart and the Registrar determines, in the Registrar's discretion, that the supplier directed, influenced, authorized, assented to, acquiesced in or participated in any action or omission, which directly or indirectly enabled the underlying action(s) or omission(s) that relate to the offence, where the supplier knew or ought to have known that its affiliate was involved in the offence.
  9. The supplier:
    1. is a person listed or designated under regulations made pursuant to the United Nations Act (UN Act), Special Economic Measures Act (SEMA), the Justice for Victims of Corrupt Foreign Officials Act (JVCFOA) or the Freezing Assets of Corrupt Foreign Officials Act (FACFOA), or is owned or controlled by such a person; or
    2. has engaged in any activity prohibited under regulations made pursuant to the UN Act, SEMA, the JVCFOA or the FACFOA.
  10. The Registrar determines, at any time and in the Registrar's discretion, that:
    1. contracting with the supplier may bring the Federal procurement into public disrepute or otherwise be contrary to Canadian public policy (such as, in situations of false declarations, significant or persistent deficiencies in performance of any substantive requirement or obligation under a prior contract or contracts, final judgments in respect of serious crimes or other serious offences and professional misconduct or acts or omissions that adversely reflect on the commercial integrity of the supplier); or
    2. the supplier lacks business integrity or business honesty that seriously and directly affects the present responsibility of the supplier; with Canada considering the foregoing in situations where the supplier:
      1. within the past three (3) yearsFootnote *, breached the Code of Conduct for Procurement; or
      2. is determined to be ineligible or debarred by any provincial, foreign jurisdiction or international organization (such as, the World Bank).
  11. The supplier has, within the past three (3) yearsFootnote * been convicted of an offense that resulted in being listed on the Environmental Offenders Registry; and the Registrar determines, in the Registrar's discretion, that the foregoing is serious, repetitive or otherwise egregious.
  12. The supplier has, within the past three (3) yearsFootnote *, been assessed an administrative monetary penalty and/or has been publicly named for having committed a violation pursuant to Part IV of the Canada Labour Code; and the Registrar determines, in the Registrar's discretion, that the foregoing is serious, repetitive and/or otherwise egregious.
  13. The supplier has within the last three (3) yearsFootnote * received a poor performance evaluation pursuant to PWGSC's Vendor Performance Corrective Measure Policy and the Registrar determines, in the Registrar's discretion, that the foregoing is serious, repetitive or otherwise egregious.
  14. A director, manager or senior officer of the supplier is ineligible to be awarded a contract or is otherwise suspended under this policy and the Registrar determines, in the Registrar's discretion, that such director, manager or senior officer has an opportunity to direct or influence the supplier.

Appendix 3—Factors to consider in establishing period of ineligibility

In determining the length of a supplier's ineligibility period, the Registrar will take into account the seriousness of the conduct engaged in, balanced against the steps taken by the supplier to ensure that similar conduct does not recur. The more serious the conduct that resulted in the determination of ineligibility, the more comprehensive the steps taken to address it will need to be. The Registrar will need to be convinced that the circumstances leading to the debarment have been addressed.

Factors that the Registrar may take into account include the following:

Seriousness of the conduct engaged in

  • the supplier's role in the conduct
  • the degree of planning involved in carrying out the offence and the duration and complexity of the offence
  • the extent of senior management involvement
  • gains realized by the supplier as a result of the offence
  • the cost to public authorities of the investigation and prosecution of the offence
  • known membership in or associations with organized crime and money laundering
  • Whether the supplier is a repeat offender, or was previously warned about such behaviour, will also be a serious consideration as it indicates an unwillingness or inability to address compliance issues effectively and credibly

Steps taken to address concerns

  • voluntary disclosure of involvement in the offence
  • whether the supplier has completed a thorough investigation of the circumstances that led to the debarment and cooperated with the investigating authorities
  • steps taken to address the wrongdoing, including addressing any criminal, civil or administrative sanctions and paying compensation for damage
  • appropriate disciplinary action against the individuals involved in the conduct
  • whether the supplier had compliance measures and internal control systems in place at the time the conduct took place
  • the adoption and implementation of a credible and effective compliance program that demonstrates the supplier's commitment to complying with the law
  • whether the supplier has implemented or agreed to implement remedial measures, including through personnel changes and the adoption of new procedures and training and having regard to any measures that might be recommended by the Registrar or the investigating authority
  • whether the supplier's management appears to recognize and understand the seriousness of the conduct and is committed to taking serious steps to ensure that it does not recur
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