In terms of Canada’s Corruption of Foreign Public Officials Act (CFPOA), serious consideration must be given to the recently adopted Integrity Regime: Ineligibility and Suspension Policy. Under the new policy, a supplier or potential supplier is ineligible for the award of a contract if, within the last three years, they have been convicted or have pleaded guilty to an offense to a violation of the CFPOA, including the record-keeping offense under section 5 of the CFPOA. Although there are certain categories of transactions that may be exempt, the policy applies broadly to supply contracts, construction contracts, real property contracts, and service contracts.
If an affiliate of a supplier has been convicted of a listed offense, including violations of the CFPOA, or similar offenses in foreign settings, an assessment will be made to determine if there was any participation involvement from the supplier in the actions that led to the affiliate’s conviction. If “there is evidence that the supplier/potential supplier directed, influenced, authorized, assented to, acquiesced in or participated in the commission or omission of the acts or offences,” the supplier will be rendered ineligible.
The period of ineligibility is 10 years from the date of determination. However, a supplier may at any time have its ineligibility period reduced by five years if it can demonstrate that it has:
- Cooperated with law enforcement authorities; or
- Have undertaken remedial action(s) to address the wrongdoing.
In such circumstances, an administrative agreement would be imposed to monitor the supplier’s progress.
Of particular significance, prior to a conviction or the entry of a plea, a supplier may also be ineligible for up to 18 months if it is charged or admits guilt to one of the listed or similar foreign offenses. This period may be extended pending completion of a criminal proceeding. By administration agreement requiring interim action, the suspension period may be altered or suspended.