Evidence of meeting #84 for Government Operations and Estimates in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was process.
A recording is available from Parliament.
10:10 a.m.
Head, Commercial Litigation, Mann Lawyers LLP, As an Individual
It's twice that I know of.
10:10 a.m.
Head, Commercial Litigation, Mann Lawyers LLP, As an Individual
There have been attempts to take issue with solicitations that are being run with a national security exception invoked. In all but these two instances the tribunal has declined to hear the matter, basically, because it determined that the technical, the NSE, was signed off by a person with the appropriate authority and at that point it was outside of its jurisdiction.
10:10 a.m.
Conservative
Kelly McCauley Conservative Edmonton West, AB
So, they are not signing off on the validity of the issue; it's just more that they followed the rules properly.
10:10 a.m.
Head, Commercial Litigation, Mann Lawyers LLP, As an Individual
Correct. The MD Charlton decision was the first time they said that, no, the NSE has gone too far, and they've done that again with the Hewlett-Packard decision. The committee should definitely take a look at this decision, if you haven't already, and I suspect you probably have. The tribunal sets out a very....
10:10 a.m.
Conservative
Kelly McCauley Conservative Edmonton West, AB
So, just very quickly, what do we have to change, then, with the NSE to expand it so CITT believes it has the mandate to look at this, because this sounds as if we've narrowed its ability too much in just saying, “Well, they followed the rules.”
10:10 a.m.
Head, Commercial Litigation, Mann Lawyers LLP, As an Individual
So, the CITT is interpreting its own jurisdiction, for lack of a better term, in deciding whether or not and how deeply it can look at—
10:10 a.m.
Conservative
10:10 a.m.
Head, Commercial Litigation, Mann Lawyers LLP, As an Individual
I mean, again, this is all new because it's all very recent within the last year. The CITT may decide that it has the ability to dive deeper, or it may not. If it doesn't and if it's only going to look at whether there is legitimate reason shown in the actual national security exception—whether that's actually legitimate is a separate question—then perhaps that would be the way to do it.
10:10 a.m.
Conservative
10:10 a.m.
Liberal
10:10 a.m.
NDP
Erin Weir NDP Regina—Lewvan, SK
Thank you.
Mr. Grammond, you mentioned the Auditor General, and the news is out this morning that the Auditor General is questioning Defence Construction Canada for a lack of fraud prevention in its procurement. I appreciate this isn't the issue any of you were invited here to testify about, but on the other hand, you are experts on procurement and defence, so I wondered if you had any thoughts on this situation.
10:10 a.m.
Fellow, Centre for Security, Intelligence and Defence Studies, Norman Paterson School of International Affairs, As an Individual
I haven't, sir, no.
10:10 a.m.
NDP
Erin Weir NDP Regina—Lewvan, SK
Okay, no problem; I thought it was worth providing the opportunity.
Something I did want to raise regarding the national security exception is whether it's possible that the procurement requirements in trade agreements are just too onerous to begin with.
10:10 a.m.
Head, Commercial Litigation, Mann Lawyers LLP, As an Individual
I don't believe that's the case. I mean, if you're talking about amending the requirements in all the trade agreements....The various trade agreements that we have signed off on have very similar language and requirements within them. It's not a matter of adjusting one; you'd have to adjust probably all of them. It's a trade agreement, so there's a party on the other side that's agreeing to the same or similar provisions, so it would be a tremendous undertaking, I would imagine.
10:10 a.m.
NDP
Erin Weir NDP Regina—Lewvan, SK
I guess one example of the national security exception being invoked was the purchase of winter jackets for Syrian refugees, and that seemed like a legitimate case where the government needed to procure something quickly, but it wasn't really about national security.
I guess what I'm getting at is whether there needs to be more flexibility in the trade agreements or some other mechanism for governments to do quick procurements without pretending it's national security.
10:15 a.m.
Head, Commercial Litigation, Mann Lawyers LLP, As an Individual
I agree with you on the timing issue. I read the transcripts and I disagree that the national security exception should be used when it's a timing issue. I mean if there's a national security interest in the timing issue, fine, but some of the examples that were provided were events that were happening where the process could have been planned out in advance and timing didn't seem like a legitimate basis, other than if you accept that by invoking the national security exception they wanted to take away bidder recourse so that it would speed up the process and not allow bidders to challenge.
May 2nd, 2017 / 10:15 a.m.
Professor, Civil Law Section, University of Ottawa, As an Individual
I don't know much about the example you mention, but it seems to me as you describe it that this is a case where there should be a rule—I don't know; there must be one—allowing for purchases in case of emergency, which is a totally distinct concern from national security. If national security was invoked, it's probably because the government started to see it as an easy way out, and it shouldn't.
10:15 a.m.
Head, Commercial Litigation, Mann Lawyers LLP, As an Individual
This is the same issue that comes up with sole sourcing, NSE in sole sourcing.
Let's say I'm wanting to purchase some goods inside the government and I want to sole-source that, there's a fairly robust process I would have to go through in order to get approval to sole-source. What I can do in the alternative is invoke a national security exception, then I can write my specifications so specifically that only one bidder can actually win. I would have effectively created an end run around the sole-sourcing approval process.
That's exactly what we alleged in the MD Charlton case, and I'll leave it at that.
10:15 a.m.
NDP
Erin Weir NDP Regina—Lewvan, SK
I think our committee is concerned that the national security exceptions are being overused, particularly by Shared Services. On the other hand, there might be a need for some other type of mechanism for procurements that need to be done quickly or for some reason don't fit into the framework that's been set up by trade agreements.
I'm curious about what those alternative mechanisms might be. I think this would be of particular interest to provincial and municipal governments, if they are doing procurement that now will be subject to trade agreements but have probably less ability to say that national security is their concern.
10:15 a.m.
Fellow, Centre for Security, Intelligence and Defence Studies, Norman Paterson School of International Affairs, As an Individual
Unless there's the possibility that the provinces and the cities are going to interpret the issue of security as local—emergency in the city, emergency in the province—and not national.
10:15 a.m.
Professor, Civil Law Section, University of Ottawa, As an Individual
Like public utilities, electricity, transit, or subway systems. There must be some security interest in there.
10:15 a.m.
Liberal
The Vice-Chair Liberal Yasmin Ratansi
Mr. Weir, your time is up.
Before I go to Mr. Ayoub, we have been watching the House and the debate started a little late, so maybe, if you have questions afterwards, we will have some time.
Mr. Ayoub, for five minutes.
10:15 a.m.
Liberal
Ramez Ayoub Liberal Thérèse-De Blainville, QC
Thank you, Madam Chair.
We can always take five minutes to ask questions.
A little earlier, suggestions were made. The one I wrote down is: “keep politics and bidding decisions separate”. We—Mr. Clarke in particular—want to have information, which is perfectly legitimate, but, at the same time, we want to be able to trust the process.
What I'm most interested in is a robust process so that the public, including the members of Parliament, can trust it. I don't think a committee like ours can look at specific bidding issues. There are all kinds of calls for tender, and we would spend the year studying them.
I want you to help me understand the process. Where is the problem? Where do we have to put the finger in order to change and improve certain aspects of the process and to restore confidence so that we can then ask more specific questions when there are doubts? We can ask more specific questions when doubts arise, and we should do so.
Mr. Grammond, what do you have to say about that?