Whereas the Competition Bureau (the “Bureau”), as represented by the Commissioner of Competition, and Defence Construction Canada (“DCC”), as represented by the President and CEO, are participants in this memorandum of understanding (“MOU”);
Whereas the Bureau is an independent law enforcement agency responsible for the administration and enforcement of the Competition Act, the Consumer Packaging and Labelling Act (non-food products), the Textile Labelling Act and the Precious Metals Marking Act;
Whereas DCC is a Crown corporation that was created pursuant to the Defence Production Act for the specific purpose of procuring and delivering projects in support of Canada’s defence infrastructure requirements;
Whereas the participants wish to acknowledge their important relationship and to recognize that cooperation and coordination can help to improve the delivery of their respective mandates;
Whereas certain conspiracies, agreements or arrangements between or among two or more competitors or persons are criminal offences under the Competition Act;
Whereas the Bureau’s Immunity Program has proven to be its single most powerful means of detecting covert cartel activity;
Whereas DCC is in a position to take steps to ensure that procurement processes under its responsibility take into account the potential for cartel activity, to identify matters that it reasonably believes involve possible cartel activity for reporting to the Bureau for investigation, and to take certain corrective measures as appropriate;
Whereas DCC has adopted the government-wide Integrity Regime put in place by Public Services and Procurement Canada to ensure that the government only does business with ethical suppliers in Canada and abroad;
Therefore, the participants understand as follows:
1. Purpose and governing principles
1.1 The purpose of this MOU is to promote cooperation and coordination between the participants in addressing possible cartel activity in relation to procurement processes under the responsibility of DCC.
1.2 In order to achieve the purpose of this MOU, areas of collaboration may include the following:
1.2.1 enforcement, cooperation and coordination;
1.2.2 sharing of resources and information; and
1.2.3 education and awareness.
2.1 In the MOU, these terms will have the following definitions:
cartel activity means, without limitation, conduct subject to the criminal provisions in sections 45, 46, 47, 48 and 49 of the Competition Act;
enforcement activity includes an investigation conducted by the Bureau under the Competition Act involving possible cartel activity, including cartel activity in relation to procurement processes under the responsibility of DCC;
procurement process means a call or request for bids or tenders for goods and professional, construction and maintenance services, including competitive processes required for the establishment of standing offers and standing offer agreements for such goods and services.
3. Preservation of powers, duties and functions
3.1 The participants have separate powers, duties and functions, and each recognizes the other’s independence in exercising its powers and performing its duties and functions.
3.2 Nothing in this MOU abrogates or derogates from any power, duty or function of the Bureau or DCC.
4. Enforcement, cooperation and coordination
4.1 Where the Bureau becomes aware of possible cartel activity in relation to a procurement process under the responsibility of DCC, the Bureau will inform DCC as soon as practicable once the Bureau has determined that the matter raises a valid concern under the Competition Act.
4.2 The Bureau will consult with DCC’s Vice-President, Operations — Procurement, when requiring information from DCC as part of the Bureau’s enforcement activities, such as supporting evidence, advice or other information on issues related to DCC or individuals or companies conducting business with DCC.
4.3 Where DCC detects what it reasonably believes to be possible cartel activity in relation to a procurement process under its responsibility, DCC will inform the Bureau about the matter as soon as practicable.
4.4 Where DCC is informed by the Bureau, under section 4.1, of possible cartel activity in relation to a procurement process under its responsibility, or where DCC detects what it reasonably believes to be such activity and informs the Bureau under section 4.3, it may nonetheless decide to proceed with the procurement process as needed to meet operational requirements.
Where DCC determines that the integrity of a procurement process under its responsibility has been compromised by contractors, consultants or suppliers suspected of having engaged in cartel activity, it may impose corrective measures that it deems appropriate in the circumstances. DCC will promptly notify the Bureau of the imposition of any such corrective measures.
5. Sharing of resources and information
5.1 The participants will consult with each other on matters of mutual interest whenever the need arises. As part of this consultation process, the participants agree that they will, among other things:
5.1.1 work in cooperation, where opportunities present themselves, to share resources and exchange information in order to increase expertise in areas of mutual interest that are related to procurement processes and competition law; and
5.1.2 share information related to best practices, including information relating to international policies and programs, in areas of mutual interest that are related to procurement processes and competition law.
6. Education and awareness
6.1 Education and awareness programs enhance the ability of the participants to achieve their goals of preserving and promoting the benefits of fair, efficient and competitive procurement processes. The participants will engage in outreach activities including education and awareness programs aimed at educating organizations and individuals on how to detect and prevent potential cartel activity in procurement processes under the responsibility of DCC.
6.2 The Bureau will offer education to DCC employees involved in procurement activities with respect to warning signs associated with possible cartel activity, as well as the steps that can be taken to reduce the likelihood of being victimized and to report suspected instances to the Bureau. The Bureau also informs businesses about the Competition Act.
6.3 DCC will provide internal training to employees involved in procurement activities and, through its network of five regional offices, deliver, as required, information sessions to firms interested in doing business with DCC.
6.4 In view of the participants’ education and awareness activities, they will, as agreed from time to time:
6.4.1 consult on, and coordinate the delivery of, key messages related to the detection and prevention of cartel activity to be included in communications with relevant stakeholders and with DCC employees involved in procurement activities; and
6.4.2 establish a work plan for activities and events to be undertaken under section 6.4.1.
7. Information sharing, management and confidentiality
7.1 The participants will not share information under this MOU if doing so would contravene the Defence Production Act, Competition Act or any other applicable federal legislation, international instrument, policy and/or guidance document.
7.2 Subject to the provisions of the Competition Act, Access to Information Act, Privacy Act and any other applicable federal legislation, policy and/or guidance document, the information communicated between the participants under this MOU will be treated confidentially.
7.3 The participants will take all reasonable steps to protect and preserve the confidentiality and integrity of the information communicated between the participants under this MOU and to guard against its unauthorized access and accidental disclosure.
7.4 The participants will limit access to the information communicated between the participants under this MOU to those of their authorized employees whose duties require such access, who are bound to keep confidences as a condition of employment and who have the appropriate security clearance.
7.5 Any information communicated between the participants under this MOU will only be used for the specific purpose for which it was provided and, subject to section 29 of the Competition Act or section 30 of the Defence Production Act will not be communicated to a third party without the express written consent of the participant from whom it originated unless:
7.5.1 the information is publicly available; or
7.5.2 communication is required by law, in which case the participant will notify the other as soon as possible upon learning of such requirement in order to enable them to take the steps necessary to maintain the confidentiality of the information.
7.6 Each participant will:
7.6.1 promptly notify the other participant of any unauthorized access or accidental disclosure of the information communicated between the participants under this MOU, furnish the other participant with details of the unauthorized access or accidental disclosure and take all reasonably necessary steps to prevent a re-occurrence and minimize the impact of the unauthorized access or disclosure;
7.6.2 immediately notify the other participant if it receives a request under the Privacy Act, the Access to Information Act or any other lawful authority, for the disclosure of information communicated from one participant to the other under this MOU and, if requested, endeavour to protect, to the extent permitted by law, the information from such disclosure through an appropriate consultation under the Access to Information Act; and
7.6.3 promptly return any information that should not have been provided to it by the other participant.
7.7 The information communicated between the participants under this MOU will be administered, maintained, accessed, stored and disposed of in accordance with the Privacy Act, the Access to Information Act, the Library and Archives of Canada Act and any other applicable act of Parliament, as well as the Policy on Government Security and any other relevant policies, guidelines and standards.
8.1 The participants will evaluate the effectiveness of their activities under this MOU as agreed from time to time.
8.2 As part of a review under section 8.1, the participants will explore further opportunities for cooperation and coordination.
9. Financial agreements
9.1 The participants will bear their own costs, fees and expenses incurred through their participation in this MOU.
10.1 The participants may, at any time, consent to amending this MOU through an exchange of letters between the persons occupying the position of signatories to the MOU.
11.1 Communications under this MOU will be carried out through the following designated officials or their delegates:
The Vice-President, Operations – Procurement
For the Bureau
The Deputy Commissioner of Competition, Cartels Directorate, Cartels and Deceptive Marketing Practices Branch
12. Effective date and termination
12.1 This MOU will come into effect on the date of last signing.
12.2 This MOU may be terminated with thirty (30) days written notice by either of the Participants.
In Witness Thereof, this MOU was signed in duplicate, in both official languages, each copy being equally authentic.
For Defence Construction Canada
President and CEO
For the Competition Bureau
Interim Commissioner of Competition