Factors for determining similarity of offences

Factors for determining similarity of offences are the considerations Canada applies to decide whether an offence committed or prosecuted outside Canada is similar to an offence on the Canadian list used in federal supplier-integrity rules. The question matters because a conviction for a listed offence can affect whether a supplier is eligible to receive a federal contract or supply arrangement.

The term is normally used as a clause heading in federal procurement documents, often worded "Determination of Similarity of Offences." Related terms in Canadian sources are "foreign offence" and "similar foreign offence." The core factors are set out in the CanadaBuys Supply Manual, Chapter 2 Annexes.

The four core factors in procurement clauses

Public Services and Procurement Canada (PSPC) supply arrangements and solicitations state that Canada will consider four factors when it decides whether a foreign offence is similar to a listed offence:

• Whether the foreign court acted within its jurisdiction.
• Whether the supplier had the right to appear during the proceedings, or submitted to the court's jurisdiction.
• Whether the decision was obtained by fraud.
• Whether the supplier was able to present every defence that would have been available if the proceeding had taken place in Canada.

The wording appears, for example, in the Solution-based Supply Arrangement and in the task-based services supply arrangement.

Wider considerations in the Ineligibility and Suspension Policy

The federal Ineligibility and Suspension Policy sets out a more detailed list for the Registrar to consider. It covers the following:

• Differences in the burden of proof between the foreign jurisdiction and Canada.
• Whether the foreign court acted within its jurisdiction.
• Whether the supplier could appear or submit to the court's jurisdiction.
• Fraud, illicit activity or other failures in the administration of justice.
• Differences in the defences available.
• Differences between the foreign offence and the corresponding Canadian offence.

The policy therefore adds a direct comparison of the offences themselves and of the standard of proof, alongside the procedural fairness factors found in the shorter clause.

Where the clause appears in federal procurement

The clause is used across PSPC's services procurement tools. It is found in the solutions-based services supply arrangement, which applies the factors to both offerors and contractors. It also appears in the Professional Audit Support Services supply arrangement, the Temporary Help Services supply arrangement and the ProServices supply arrangement.

It is also found in individual solicitations published on CanadaBuys, where it appears as a numbered clause in requests for proposals and invitations to tender. An example request for proposal shows the standard format.

What it means for a supplier bidding on Canadian public contracts

A supplier or contractor must provide the information that the integrity provisions of a solicitation or contract require about convictions, offences and related proceedings. A foreign conviction or other foreign offence can be assessed against the Canadian listed offences using the stated factors, so a conviction outside Canada is not automatically outside the scope of the rules. Bid teams should read the integrity clauses in each solicitation, because the specific disclosure and certification obligations depend on those clauses. Suppliers with foreign proceedings in their history should review them against the factors before they certify or submit an offer.