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3.105.10. Procedures for invoking a national security exception

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  1. All requests to invoke an NSE to exclude a procurement from a trade agreement, or any combination of the agreements, will normally be submitted by the client department to the ADM/AP for approval, regardless of dollar value, where PWGSC/AP is the contracting authority.
  2. A request must be in the form of a letter from the responsible ADM level equivalent at the client department. The letter must explain the nature of the proposed procurement and, depending upon which trade agreement(s) applies, how it relates to:
    1. Canada's "national security interests" or, pursuant to Canada's international obligations, "the maintenance of international peace and security". (CFTA: Article 801); and/or
    2. Canada's "essential security interests relating to the procurement of arms, ammunition or war materials, or to procurement indispensable for national security or for national defence purposes". (CETA: Article 19.3 (1) / WTO-AGP: Article III (1) / CPTPP: Article 29.2 / Canada-Chile: Article Kbis-16 (1) / Canada-Colombia: Article 1402 (1) / Canada-Honduras: Article 17.3 (1) / Canada-Korea: Article 22.2 / Canada-Panama: Article 16.03 (1) / Canada-Peru: Article 1402 (1) / Canada-Ukraine: Article 10.4 (1)).
  3. In reviewing requests to invoke the NSE, the ADM/AP will consider only the issue of whether or not to invoke the NSE and will not consider at that time, other matters such as procurement methods, procurement plans or authority to enter into the contract. Client departments should work with the PWGSC contracting officer to determine which method of procurement be used, in parallel with any request for approval of an NSE. In situations where the NSE is invoked and applied to the procurement, it remains government policy to compete the requirement, subject to the exceptions to competitive contracting provided in the Government Contracts Regulations(GCRs).
  4. Requests for an NSE are reviewed by the Specialized Services for Procurement Group (SSPG) of the Procurement Support Services Sector (PSSS) before the approval of the ADM/AP is sought. Once the ADM/AP has made a decision whether or not to invoke an NSE, the ADM/AP will advise the client department in writing of the decision. For the approval process for NSE, see section 1.1.4 of Annex 6.4.1: Approval Authorities and Additional Signing Authorities in Support of Clients' Programs Only - Other than for Canadian Commercial Corporation.
    Note: Contracting officers seeking advice to aid client departments in properly framing and requesting an NSE should contact SSPG via email at tpsgc.ersnceasns-nsensscc.pwgsc@tpsgc-pwgsc.gc.ca. It is strongly recommended that a draft of the NSE request letter be forwarded to SSPG for review before having it signed by the responsible ADM at the client department. For a template of the NSE request letter, contact SSPG.
  5. Following the invocation of an NSE, the contracting officer must state in all procurement documents that an NSE has been invoked and is being applied to the requirement. The rationale for the invocation, and the specific trade agreements from which the procurement is being excluded, are to be identified in the procurement approval documents. A copy of the NSE approval letter must be kept on file.