O. Reg. 117/18: SUPPLIERS FROM NEW YORK

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Fairness in Procurement Act, 2018

ONTARIO REGULATION 117/18

SUPPLIERS FROM NEW YORK

Consolidation Period:  From April 1, 2018 to the e-Laws currency date.

No amendments.

This is the English version of a bilingual regulation.

Definitions

1. In this Regulation,

“New York” means the State of New York; (version anglaise seulement)

“structural iron” means a product that is made of either wrought iron or cast iron or both and that is designed to carry a load, but does not include a product that contains any form of steel. (“fer profilé”)

Non-application

2. This Regulation does not apply to any procurement processes initiated by a broader public sector entity or any procurement contracts entered into by a broader public sector entity.

Designation of New York as offending American jurisdiction

3. The State of New York is designated as an offending American jurisdiction.

Whether supplier is from New York

4. (1) A supplier who is an individual is considered to be from New York if he or she is ordinarily resident in New York.

(2) A supplier that is a partnership is considered to be from New York if at least 50 per cent of the partners are either,

(a) individuals who are ordinarily resident in New York; or

(b) corporations whose head office or registered head office is in New York.

(3) A supplier that is a corporation is considered to be from New York if,

(a) the head office or registered head office of the corporation is in New York; or

(b) the corporation is controlled directly or indirectly by,

(i) individuals who are ordinarily resident in New York,

(ii) a corporation whose head office or registered head office is in New York, or

(iii) a partnership where 50 per cent of the partners are either,

(A) individuals who are ordinarily resident in New York, or

(B) corporations whose head office or registered head office is in New York.

(4) A Government entity may rely on a representation made by a supplier in a procurement process or in a procurement contract as to whether or not the supplier is from New York and is not required to verify the accuracy of the representation.

Procurement contracts re structural iron

5. (1) This section applies to any procurement process initiated by a Government entity for the construction, reconstruction, alteration, repair, maintenance or improvement of a surface road or bridge where the value of the procurement contract at the time that the procurement contract is entered into is expected to be greater than $1,000,000 U.S. dollars, and to any procurement contract that results from such a procurement process.

(2) If a procurement process described in subsection (1) results in a procurement contract with a supplier from New York, the Government entity shall include in the procurement contract a provision that any structural iron used or supplied in the performance of the procurement contract and permanently incorporated into the surface road or bridge will be fabricated in a jurisdiction other than New York.

(3) For the purposes of subsection (2), a Government entity may rely on a representation made by a supplier in a procurement process or in a procurement contract as to whether any structural iron used or supplied in the performance of the procurement contract and permanently incorporated into the surface road or bridge will or will not be fabricated in a jurisdiction other than New York, and the Government entity is not required to verify the accuracy of the representation.

(4) For the purposes of this section, structural iron is permanently incorporated into a surface road or bridge if it is required to remain in place at the end of a project under the procurement contract, in a fixed location, affixed to the surface road or bridge into which it was incorporated.

(5) A Government entity shall not take any actions to reduce the expected value of a procurement contract for the purpose of avoiding the application of subsection (1).

(6) If the expected value of the procurement contract is expressed in Canadian dollars, the Bank of Canada’s daily exchange rate shall apply for the purposes of determining its value in U.S. dollars for the purposes of subsection (1).

Application of s. 5

6. (1) Section 5 does not apply to a procurement contract that,

(a) was awarded before April 1, 2018, even if it was entered into on or after that date;

(b) will be awarded on or after April 1, 2018, if the contract will be awarded under a procurement process for which a request for bids, a request for proposals or other procurement document, including a request for qualifications, was issued before April 1, 2018; or

(c) is entered into for a purpose that is consistent with the objectives of an order issued under the Emergency Management and Civil Protection Act.

(2) Section 5 only applies to the Ontario Infrastructure and Land Corporation if it is initiating a procurement process or entering into a procurement contract on behalf of a Government entity, or for a project for a Government entity.

Exemptions

7. (1) A Government entity that is engaged in or that will engage in a procurement process leading to a procurement contract may seek an exemption from a provision of this Regulation from the Management Board of Cabinet.

(2) An exemption under subsection (1) may be for one or more Government entities and may be in respect of a single procurement process or multiple related procurement processes or in respect of one or more particular suppliers.

(3) The Management Board of Cabinet may exempt the Government entity from a provision of this Regulation, and in exercising its discretion it may consider any matter it regards as relevant including, without limiting the generality of the foregoing,

(a) whether procuring in compliance with this Regulation would interfere with the Government entity’s ability to maintain security or order or to protect human, animal or plant life or health;

(b) whether structural iron is available in a sufficient quantity or of a sufficient quality from suppliers from one or more jurisdictions that are not offending American jurisdictions;

(c) whether there are no other qualified bids;

(d) whether procuring in compliance with this Regulation would increase the procurement value by an unreasonable amount;

(e) whether a trade agreement has been entered into by the Government of Ontario, by the Government of Canada on behalf of the Government of Ontario or by the Government of Canada respecting matters that affect Ontario; and

(f) whether the offending American jurisdiction has ceased discriminatory procurement practices that may inhibit or prevent Ontario suppliers from participating or succeeding in procurement processes initiated by purchasers from the offending American jurisdiction.

Exemptions - urgent situation

8. (1) Despite subsection 7 (1), an exemption from a provision of this Regulation may be granted to a Government entity by the approval authority identified in Column 2 of Schedule 1 set out opposite the Government entity in Column 1, if the approval authority determines that an urgent situation exists.

(2) An urgent situation exists where an unforeseen situation has arisen such that an exemption under subsection 7 (1) cannot reasonably be obtained before the procurement process must begin or procurement contract must be entered into, but does not include a situation where a Government entity has failed to allocate sufficient time to obtain an exemption under subsection 7 (1).

Ontario’s obligations under trade agreements

9. This Regulation is intended to be applied in a manner consistent with the Government of Ontario’s obligations under any trade agreement.

SCHEDULE 1
Approval authorities - Urgent situation

Item	Column 1 Government entity	Column 2 Approval authority
1.	Ministry	Deputy Minister of the Ministry
2.	A public body designated in regulations made under the Public Service of Ontario Act, 2006	The individual who holds the most senior executive position in the public body, regardless of the actual title of the position
3.	Independent Electricity System Operator	The chief executive officer of Independent Electricity System Operator
4.	Ontario Power Generation Inc.	The chief executive officer of Ontario Power Generation Inc.
5.	A subsidiary of Ontario Power Generation Inc.	The chief executive officer of the subsidiary.

10. Omitted (provides for coming into force of provisions of this Regulation).

 

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