Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



Canadian International Trade Tribunal Determines Health Care Services NOT Covered in Procurement Agreements

Talk about perfect timing! The Canadian International Trade Tribunal (CITT) issued a decision on October 13, 2010 in the case of Bayshore Healthcare Ltd. (doing business as Bayshore Home Health) (PR-2010-065). The timing of the decision is noteworthy because of the question being addressed - Did the Government of Canada agree to open health care procurement under the WTO Agreement on Government Procurement, Chapter 10 of NAFTA, or the Agreement on Internal Trade? The answer was no - Canada did not.

The Tribunal determined that none of the trade agreements applied to the procurement at issue because:

    ● Paragraph 1(e) of Annex 502.1B of the AIT excludes “health services" from coverage;

    ● Annex 1001.1b-2 of NAFTA, Annex Kbis-01.1-4 of the CCFTA and Annex 1401.1-4 of the CPFTA, which all use the Common Classification System for classifying services, exclude all classes of services under Group G, “Health and Social Services"; and

    ● Annex 4 of Canada's Appendix 1 to the AGP, which provides a listing of services that Canada offers for coverage, does not include any health services.

As a result, the CITT did not commence a government procurement bid challenge inquiry.

The timing is important because Canadian and EU negotiators are meeting on the Canada-EU Comprehensive Economic and Trade Agreement this week in Ottawa for the fifth round of negotiations. Government procurement in a hot topic in the negotiations. The EU negotiators want to see provincial procurement opened to EU suppliers beyond what is granted at the WTO and to the United States under NAFTA. The EU negotiators are interested in the very large provincial health care budgets (procurement contracts).

What this decision confirms for the EU negotiators is that the provincial health care procurement market is not currently open to anyone. This will make the health care concessions more desirable.

For a copy of the CITT Decision in Bayshore, please go to the following link - ftp://ftp.citt-tcce.gc.ca/doc/english/procurement/determinations/pr2k065_e.pdf

 

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