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3.105.5. Texts of the national security exceptions

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  1. The relevant text for each trade agreement can be found as follows:
    1. for CETA, Article 19.3: Security and general exceptions in Chapter 19;
    2. for WTO-AGP, Article III: Security and General Exceptions;
    3. for CPTPP, Article 29.2: Security Exceptions in Chapter 29;
    4. for the Canada-Chile Free Trade Agreement, Article Kbis-16: Exceptions;
    5. for the Canada-Colombia Free Trade Agreement, Article 1402: Security and General Exceptions in Chapter 14;
    6. for the Canada-Honduras Free Trade Agreement, Article 17.3: Security and General Exceptions in Chapter 17;
    7. for the Canada-Korea Free Trade Agreement, Article 22.2, National Security in Chapter 22;
    8. for the Canada-Panama Free Trade Agreement, Article 16.03: Security and General Exceptions in Chapter 16;
    9. for the Canada-Peru Free Trade Agreement, Article 1402: Security and General Exceptions in Chapter 14.
    10. for the Canada-Ukraine Free Trade Agreement (CUFTA), Article 10.4: Security and General Exceptions in Chapter 10;
    11. for the CFTA, Article 801: National Security.
  2. The Canadian International Trade Tribunal (CITT), in its decision PR-98-005, has found that "the most senior level of substantive policy formulation and advice to the department on all Acquisition Branch activities..." has the authority to invoke the use of the National Security Exception (NSE), to exclude a procurement from Canada's trade agreements. For Public Works and Government Services Canada (PWGSC), that authority rests with the Assistant Deputy Minister(s) of the Acquisitions Program (ADM/AP).
  3. Furthermore, on the basis of the authority given to the Minister under section 6 of the Department of Public Works and Government Services Act, in conjunction with paragraph 24(2)( d) of the Interpretation Act, PWGSC has decided that this specific authority will not be delegated to a lower level official because of the nature of the exception. PWGSC has further decided that an NSE will not be invoked by anyone other than the ADM/AP, where PWGSC/Acquisitions Program is the contracting authority. See the procedures for invoking an NSE in section 3.105.10.
  4. Invoking an NSE under the trade agreements does not affect the obligation to comply with the Government Contracts Regulations (GCRs), including such matters as sole source justifications, other sourcing strategy issues and contracting officer limits. Procurements for which an NSE is invoked and applied remain subject to other relevant regulations and governmental and departmental policies, which may include posting a Notice of Proposed Procurement (NPP) or an Advance Contract Award Notice (ACAN) on the Government Electronic Tendering Service (GETS) where appropriate, though the security requirements may, in some cases, preclude such actions.
  5. If the NSE has been invoked and applied to a procurement, the contracting officers must insert the following statement in all notifications to suppliers and in all tender documents: "This procurement is subject to national security exception and is, therefore, excluded from all of the obligations of the trade agreements."