Recently, a global Baker & McKenzie team led by Bill Watson, Lee Van Voorhis, Chris Burkett, and Jennifer Bernardo received approval from the Government of Canada to act as an approved Third Party reviewer under the Canadian Integrity Regime. As we described at the time, in July 2015, the Canadian government announced a revised Integrity Regime, which applies to all federal procurement and real property transactions, and potentially disqualifies suppliers who have been convicted of “integrity offences” in Canada, or similar offences abroad, from contracting with the federal government for a set period of time ranging from 5-10 years. The penalties under the Integrity Regime can also be applied to the affiliates of convicted entities. A declaration of ineligibility has the potential to cost companies millions of dollars in revenue from government business, not to mention additional losses due to reputational harm. Over the past few months, the Government of Canada has begun notifying companies that face potential debarment due to the convictions of their affiliates abroad under foreign corruption, criminal, and competition laws. Where a company doing business with Canada has an affiliate with a relevant foreign conviction, the Government has been serving them with Notices of Intent to Declare Ineligible. Where this has occurred, companies are required to retain the services of a qualified and approved Third Party to review the details of any relevant foreign convictions, along with any evidence regarding the company’s involvement or participation in the actions of their affiliates which led to the underlying foreign convictions. A Third Party may also be required to have:
- the ability to obtain judgements for foreign convictions, and identify the constitutive elements of foreign offences, where required
- experience in corporate ethics and compliance programs, investigations and enquiries
- experience reviewing and evaluating global anti-corruption compliance programs, where required
- experience in overseeing prevention and remedial programs and/or preventing, detecting and remediating fraud
- experience working with the Government
- sufficient resources to effectively monitor an ethics and compliance program over a multi-year period where an administrative agreement is involved
The Third Party, after a thorough review, must deliver a detailed report to the Government of Canada outlining its findings, after which the Government will make a final decision on eligibility. The Government of Canada has begun compiling a public list of companies which it has, to date, declared ineligible from contracting with it due to ethical misconduct. As the leading global law firm, Baker & McKenzie is well positioned to obtain the information required under the Integrity Regime, and we have the deep global compliance expertise necessary to review and draft a Third Party report.