November 20, 2019
Whereas the Competition Bureau (the “Bureau”), as represented by the Commissioner of Competition, and the Department of Highways and Public Works, Government of Yukon (the “Department”), as represented by the Deputy Minister of the Department, 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 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 the Department recognizes the importance of its stakeholders in the business community conducting their activities in compliance with the Competition Act, in particular with respect to doing business with the Government of Yukon;
Whereas certain conspiracies, agreements or arrangements between or among two or more competitors or persons are criminal offences under the Competition Act, the Bureau’s Immunity and Leniency Program is an important tool for detecting and investigating cartel activity;
Whereas the Department recognizes that procurement processes under its responsibility should take into account the potential for cartel activity, which is defined below and includes bid-rigging 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;
Therefore, the participants understand as follows:
On this Page:
- Purpose and Governing Principles
- Preservation of Powers, Duties and Functions
- Enforcement, Cooperation and Coordination
- Sharing of Resources and Information about Best Practices
- Education and Awareness
- Information Sharing, Management and Confidentiality
- Financial Arrangements
- Effective Date and Termination
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 the Department.
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 this MOU, these terms will have the following definitions:
cartel activity means anti-competitive conduct subject to the criminal provisions in sections 45, 46, 47, 48 and 49 of the Competition Act and includes bid-rigging activity;
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 the Department;
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 the Department.
3.3 For greater certainty, this MOU is not legally binding.
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 the Department, the Bureau will inform the Department as soon as practicable and such that the integrity of an investigation would not be compromised once the Bureau has determined that the matter raises a valid concern under the Competition Act.
4.2 The Bureau will consult with the Department’s Director, Procurement Support Centre, when requiring information from the Department as part of the Bureau’s enforcement activities, such as supporting evidence, advice or other information on issues related to the Department or individuals or companies conducting business with the Department.
4.3 Where the Department detects what it reasonably believes to be possible cartel activity in relation to a procurement process under its responsibility, the Department will inform the Bureau about the matter as soon as practicable, subject to law, including, but not limited to: any privacy legislation and any restrictions on the use or disclosure of personal information as defined in Yukon’s Access to Information and Protection of Privacy Act RSY 2002, c. 1 (as amended) (“ATIPP”) or “personal health information” as defined under Yukon’s Health Information Privacy and Management Act SY 2013, c. 16 (“HIPMA”).
4.4 Where the Department is informed by the Bureau, under section 4.1, of possible cartel activity in relation to a procurement process under its responsibility, or where the Department 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.
4.5 Where the Department 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. The Department will promptly notify the Bureau of the imposition of any such corrective measures.
5. Sharing of Resources and Information about Best Practices
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 the Department.
6.2 The Bureau will offer education to the Department 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 The Department will provide internal training to the Department’s employees involved in procurement activities and deliver, as appropriate, information sessions to its stakeholders in the business community who are interested in doing business with the Government of Yukon.
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, such as the business community, and with the Department 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 ATIPP, HIPMA or any other applicable territorial legislation, policy and/or guidance document, 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, ATIPP, HIPMA or any other applicable territorial 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 employees whose duties authorize such access, who are bound to keep confidences as a condition of employment and who have the appropriate security clearance.
7.5 Neither participant will disclose any information obtained from the other participant that is designated as confidential by law or restricted from being disclosed by law (e.g. subject to section 29 of the Competition Act) to any third party without the written consent of the other participant except as provided for under section 29 of the Competition Act, ATIPP, HIPMA, or as required by law. Where disclosure is required by law or anticipated, subject to law, the participant required or planning to disclose confidential information obtained from the other participant will advise the other participant as soon as reasonably practicable so as to provide the other participant the opportunity to challenge the disclosure requirement or otherwise seek to protect its interests.
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, ATIPP or any other lawful authority, for the disclosure of information communicated between the participants under this MOU and, if requested, endeavour to protect, to the extent permitted by law, the information from such disclosure; 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 Library and Archives of Canada Act and any other applicable Act of Parliament, as well as the Policy on Government Security ATIPP, HIPMA, Archives Act RSY 2002, c.9, or any other applicable territorial legislation, 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 Arrangements
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:
For the Department
The Director, Procurement Support Centre
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 Government of Yukon
Deputy Minister, Department of Highways
and Public Works, Government of Yukon
For the Competition Bureau
Commissioner of Competition