On October 29, 2026, the Ontario Bar Association presented Public Procurement Law Essentials, a 1.5-hour professional development program examining the legal and practical considerations that arise throughout the public procurement process.
Chaired by Soussanna Karas, General Counsel at Wilfrid Laurier University, the program featured Farah Malik, Crown Counsel with the Ministry of the Attorney General; Jeffrey Ma, Associate General Counsel with the Municipal Property Assessment Corporation; and Matthew Binkle, Senior Counsel with the Region of Peel.
Using a practical scenario involving a municipality seeking to procure the services of an IT security auditor, the panel walked participants through five stages of procurement, from preliminary planning through contract negotiation. A recurring theme was that effective procurement is about much more than obtaining goods or services at the best price. It requires careful attention to authority, fairness, transparency, privacy, risk, and broader public-policy objectives.
1. Building the Foundation: Planning a Procurement
The first stage occurs well before a tender is issued. Organizations need to understand what they are purchasing, who has authority to authorize it, its anticipated total value, and which policies and legal requirements govern the procurement.
An important preliminary question is whether the organization knows enough about its requirements and the relevant market to begin a formal procurement. Where that information is lacking, an organization might first conduct a Request for Information (RFI) or similar market-engagement exercise.
An RFI can help identify available vendors and solutions, test whether proposed requirements are clear and realistic, and uncover options that the organization may not have considered. Early market engagement may also reveal whether there will be sufficient vendor interest to produce a genuinely competitive process.
Determining procurement value is equally important. Rather than considering only an initial expense, organizations should consider the cumulative value of the contractual relationship, including the anticipated term, extensions and optional services. For recurring or as-needed requirements, a master services or framework agreement, with individual work orders or call-ups, may be appropriate.
The practical lesson was straightforward: do the groundwork before going to market. Insufficient planning can produce unclear requirements, poor competition and difficulties later in the procurement process.
2. Choosing the Procurement Method
Once authority, scope and value have been established, the organization must determine the appropriate procurement method.
The panel discussed the distinction between competitive and non-competitive procurement, including the three subsets of competitive procurement (open, invitational and vendor-of-record) and sole- or single-source procurements. The applicable method may depend on the procurement's value as well as whether the organization is purchasing goods, consulting services or non-consulting services.
This classification matters because different rules and monetary thresholds can apply. The panel also emphasized the importance of consulting the organization's own procurement policies, directives, bylaws and applicable trade-agreement obligations before selecting a procurement method.
The legal principles underlying those rules ultimately return to fairness. Beginning with the Supreme Court of Canada's landmark procurement decision in Ontario v. Ron Engineering & Construction (Eastern) Ltd., [1981] 1 SCR 111, Canadian procurement law has developed principles concerning compliant bids, consistent evaluation, disclosure and the obligation to conduct procurements in accordance with their stated terms.
The speakers also discussed the Buy Ontario Act (Public Sector Procurement), S.O. 2025, c. 27, Sched. 1, and related procurement requirements, highlighting a broader theme of the program: public procurement can be an instrument of public policy, not simply purchasing. Procurement rules may advance objectives such as domestic purchasing and other governmental priorities, although those objectives can also affect price and competition.
3. Securing the Right Approvals
A procurement should also have the necessary internal approvals before it is released.
Depending on the organization and subject matter, this could require business, financial, procurement, IT/security, executive and legal approvals. The correct delegation of authority should be identified at the outset, and sufficient time should be built into the procurement schedule for each required approval.
The panel also cautioned against assuming that every procurement follows the same approval route. Existing vendor-of-record arrangements, preferred-supplier lists, exemptions and particular procurement methods can change the approval requirements.
Early identification of the approval pathway reduces the risk of unexpected delays or requests for authorization after substantial work has already been completed.
4. Designing a Fair and Defensible Evaluation
Once bids are received, procurement fairness becomes particularly important.
The panel recommended establishing the evaluation criteria, scoring methodology and evaluation committee before bids are opened. Mandatory pass/fail requirements should be objective and independently verifiable. Examples could include required licenses, insurance, legislative compliance, certifications, security requirements or minimum technical capabilities.
For scored requirements, evaluators should have a clear grid describing both the information bidders must provide and how that information will be assessed. Relevant factors might include technical capability, experience, project methodology and ability to meet specific deliverables.
Pricing methodologies require similar care. Fixed fees, capped hourly rates, defined milestones and other standardized pricing mechanisms can make bids easier to compare. Ambiguous pricing structures can force a procurement team to interpret bids after the fact, creating both practical difficulties and potential fairness concerns.
The panel also emphasized maintaining appropriate separation between vendors and evaluators. Vendor questions should normally flow through the designated procurement process rather than individual evaluation committee members. Evaluators should disclose conflicts of interest and avoid circumstances, including gifts or outside communications, that could create an actual or perceived advantage.
Separating or appropriately sequencing technical and pricing evaluations may further reduce the possibility that one component improperly influences the other.
The larger lesson is that a well-designed procurement process creates the evidentiary record necessary to demonstrate that the eventual decision was reasoned, consistent and fair.
5. Contract Negotiation: Privacy, Accessibility, Data and AI
The final stage considered the transition from selecting a successful bidder to negotiating and implementing the contract.
For public-sector organizations, the resulting agreement must reflect the legislative environment in which the organization operates. Depending on the organization and procurement, considerations may include the Financial Administration Act, R.S.O. 1990, c.F.12, Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c.F31, or Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c.M.56, the Accessibility for Ontarians with Disabilities Act, 2005, S.O. 2005, c.11, and the Auditor General Act, R.S.O. 1990, c.A.35.
Privacy and information management were particularly important. Organizations should understand where information will be stored, who will have access to it, whether subcontractors or sub-processors are involved, how long information will be retained, and what happens to the information at the conclusion of the contract.
Contracts should also recognize that records held in connection with a public-sector contract may be subject to freedom-of-information and privacy requirements.
These considerations become increasingly significant when procuring AI-enabled products and services.
Procuring AI: Ask the Questions Early
One of the program's most timely discussions concerned artificial intelligence.
The panel recommended raising AI requirements during procurement design rather than waiting until final contract negotiations. Procurement documents can establish expectations concerning responsible, accountable and transparent use of AI and require vendors to explain their proposed uses.
Where AI is involved, organizations may need to ask:
- What AI system or model will the vendor use?
- What will the AI actually be used to do?
- Will personal, confidential or organizational information be processed?
- Can that information be used to train an AI model?
- What cybersecurity risks accompany the system?
- Where will information be stored and processed?
- Does the vendor rely on third-party models or sub-processors?
- How are AI outputs tested and validated?
- Will the organization be notified if the underlying model changes during the contract?
Depending on the organization's risk tolerance, the contract could require prior approval for AI use or prohibit it altogether.
The panel identified several contractual protections worth considering. These include requirements for the vendor to maintain an appropriate AI risk-management process, restrictions on secondary uses of organizational data, intellectual-property protections, and sufficiently robust audit, representation and warranty provisions to permit oversight of AI-enabled services.
Another interesting consideration concerned the procurement process itself. Organizations may wish to ask bidders to disclose whether generative AI was used in preparing their submissions and, where it was used, confirm that a person reviewed the submission for accuracy. The requirement to disclose AI use need not necessarily be to disqualify AI-assisted submissions, but rather would be used to promote transparency about how they were prepared.
AI, Privacy Impact Assessments and the “Black Box” Problem
AI also poses a practical accountability challenge because organizations may have limited visibility into how a vendor's system operates.
For public bodies, this may warrant seeking information about the models underlying the service, their provenance, testing and the mechanisms used to validate outputs. Contracts might also require vendors to notify the organization when a model changes, particularly where the organization has regulatory or accountability obligations associated with its use.
This becomes especially important where a privacy impact assessment is required. An organization may need to demonstrate that its processes and decisions are documented and traceable. AI tools that operate as a “black box” can make establishing that accountability considerably more difficult.
The practical takeaway was that AI governance should not begin after an AI product has been purchased. Procurement itself is an important AI-governance mechanism.
Key Takeaways
Several broader lessons emerged from the program:
- Good procurement begins before the RFP. Early planning, market research and clearly defined requirements create the foundation for a defensible process.
- Know your authority and applicable rules. Procurement value, subject matter and organizational policies affect both the permissible procurement method and required approvals.
- Fairness must be designed into the process. Clear requirements, predetermined scoring methodologies, conflict controls and consistent vendor communications reduce the risk of disputes.
- Privacy and information management belong in the contract. Data residency, access, retention, security and freedom-of-information obligations should be considered from the outset.
- Address AI before selecting the vendor. AI use, data practices, model changes, validation, audit rights and contractual remedies are increasingly matters for procurement design rather than simply technology implementation.
- Procurement is also an expression of public policy. Purchasing decisions can advance broader governmental priorities, but those objectives may need to be balanced against cost, competition and operational requirements.
Ultimately, Public Procurement Law Essentials demonstrated that procurement is not simply an administrative purchasing exercise. For public-sector organizations, it is a structured legal and governance process that begins with careful planning and continues through evaluation, contracting, privacy, technology and ongoing vendor oversight. As technologies such as artificial intelligence become embedded in more products and services, procurement professionals and legal counsel will increasingly play an important role in ensuring that innovation is accompanied by appropriate transparency, accountability and risk management.
About the Author
Sarah Schumacher has been the Counsel to the Chair with the Workplace Safety and Insurance Appeals Tribunal (WSIAT) since November 2020. Prior to November 2020 Sarah was Associate Counsel in the Office of the Counsel to the Chair at WSIAT since being called to the Bar in 2004.
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