U.S. rules snag military equipment deals
Ottawa facing 'unmanageable problem,' senior procurement official declares
DANIEL LEBLANC
OTTAWA -- The federal government is facing an "unmanageable problem" with its plan to purchase $17-billion in new military equipment and the eventual solution could add hundreds of millions of dollars to the bill, government documents and experts say.
The problem stems from U.S. rules that prevent some dual nationals from obtaining confidential information relating to U.S. military equipment.
Ottawa's view is that the restrictions are unconstitutional and cannot be applied in Canada.
"To undertake discriminatory employment practices based on nationality is contrary to Canada's Charter of Rights and Freedoms," said a document prepared by Dan Ross, the senior bureaucrat in charge of procurement at the Department of National Defence. "DND's recent defence procurement announcements of $17-billion could be negatively impacted by the dual-national . . . requirement."
The document, which was obtained by the French-language arm of the CBC, was circulated to government and private-sector officials last month.
The conflict between U.S. rules and Canadian law is hindering Ottawa's negotiations with the U.S. company Boeing Co. to purchase four giant C-17 cargo planes (at a cost of $3.7-billion) and 16 heavy-lift Chinook helicopters (for $4.7-billion).
The Harper government plans to buy another $9-billion in military equipment, including smaller cargo planes, ships and trucks. Those purchases will also be affected if they are made in the United States.
Federal officials say the government could be forced to engage in a process known as a "foreign military sale."
In effect, the Canadian government would buy the aircraft directly from the U.S. government, which would take a commission of about 5 per cent (roughly $400-million) to order the aircraft from Boeing and ship them north.
A retired bureaucrat said a change in the procurement process would cost more money, take more time and lead to fewer economic benefits in Canada.
"You will never get the same kind of deal as going through a very harsh and competitive marketplace," said Alan Williams, the former top bureaucrat in the procurement branch at DND. "You're not bickering on the price, plus you're paying a broker, as opposed to cutting the cost by X or Y per cent."
State Department rules known as the International Traffic in Arms Regulations prevent dual nationals from a list of proscribed countries (such as China, Cuba and Vietnam) from working on military projects that involve U.S. technology.
In Canada, the Charter prevents the federal government from treating some citizens differently than others.
"Complying with [State Department] requirements to identify dual nationals and using that information for discriminatory purposes is contrary to the Canadian Charter," said the document prepared by Mr. Ross.
The document said it is simply impossible to accommodate the U.S. restrictions and Canadian law. It's an "unmanageable problem," the document bluntly states.
The document adds that the U.S. government has been enforcing its restrictions more stringently in recent months, hence the current predicament.
Federal officials at the highest level of government are aware of the problem, and Canada's ambassador to the United States, Michael Wilson, has pressed the case with senior State Department officials.
Ottawa hopes to work around the problem by providing a high-level security clearance to the employees who require access to controlled data, in exchange for an "effective exemption" from the U.S. rules on dual nationals.
DND officials could not be reached yesterday to comment on Mr. Ross's document. A Public Works Department official acknowledged that the situation is "preoccupying."