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Statutes of Newfoundland 1994


CHAPTER 46

CHAPTER 46

AN ACT TO AMEND THE PUBLIC TENDER ACT

(Assented to December 16, 1994)

Analysis

1. S.2 Amdt.
Definitions

2. S.3 Amdt.
Tenders required

3. S.4 Amdt.
Tenders when leasing

4. S.5 Amdt.
Change orders and extensions

5. S.6 Rep.
Unit price contracts

6. S.7 Amdt.
Delegation of approval

7. S.8 Amdt.
Tender not awarded to preferred bidder

8. S.9 R&S
9. Where no tender called
9.1 Absence of bids

9. S.10 Amdt.
No tender situations to be tabled

10. S.11 Amdt.
Tenders public

11. S.12 Amdt.
Regulations

Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:


RSN 1990 cP-45 as amended

1. (1) Paragraph 2(b) of the Public Tender Act is amended by striking out the comma at the end of subparagraph (viii) and substituting a semicolon and by deleting the remainder of that paragraph.

(2) Subparagraph 2(c)(i) of the Act is amended by adding immediately before the word "minister" the word "deputy".

(3) Section 2 of the Act is amended by adding the following immediately after paragraph 2(c):

(c.1) "lease" means a transfer of the possession of leased space for a fixed period of time at a specified rent and for the purpose of this Act includes a renewal of a lease;

(4) Paragraph 2(g) of the Act is repealed and the following substituted:

(g) "services" does not include

(i) services that provide an opinion of a professional person including legal, engineering, architectural, accounting, land surveying, banking or insurance services, or

(ii) other services that require the opinion, creativity, design or technical expertise of a professional person; and

2. (1) Paragraph 3(2)(a) of the Act is amended by striking out the figure "$5000" and substituting the figure and words "$7,500, exclusive of goods and services tax imposable under Part IX of the Excise Tax Act (Canada) and retail sales tax imposable under the Retail Sales Tax Act".

(2) Paragraph 3(2)(b) of the Act is amended by striking out the figure "$30,000" and substituting the figure and words "$25,000, exclusive of goods and services tax imposable under Part IX of the Excise Tax Act (Canada) and retail sales tax imposable under the Retail Sales Tax Act".

(3) Paragraph 3(2)(c) of the Act is amended by adding immediately after the word "body", the words "or of another government funded body, provided that the Treasury Board first approves that work".

(4) Paragraph 3(2)(d) of the Act is amended by striking out the word "or".

(5) Paragraph 3(2)(e) of the Act is repealed and the following substituted:

(e) where the dealer, supplier or contractor providing the work or acquisition is the only source of that work or acquisition;

(f) where the government funded body has, in writing, delegated its authority to invite a tender to another government funded body which has invited a tender on behalf of the 1st government funded body and has awarded the contract in accordance with the Act;

(g) where an acquisition is for the purpose of resale or is incorporated into a product for resale by a government funded body named by regulation; or

(h) where set rates have been established by the board acting under the Public Utilities Act.

(6) Subsection 3(3) of the Act is amended by striking out the words, figure and comma "less than $5000," and substituting the words, figure and comma "not more than $7,500, exclusive of goods and service tax imposable under Part IX of the Excise Tax Act (Canada) and retail sales tax imposable under the Retail Sales Tax Act,".

3. (1) Paragraph 4(1)(a) of the Act is amended by striking out the figures and word "$5,000; or" and substituting the figures and words "$7,500, exclusive of goods and services tax imposable under Part IX of the Excise Tax Act (Canada) and retail sales tax imposable under the Retail Sales Tax Act; "

(2) Paragraph 4(1)(b) of the Act is repealed and the following substituted:

(b) the estimated rental value of the space is not more than $30,000 exclusive of goods and services tax imposable under Part IX of the Excise Tax Act (Canada)and retail sales tax imposable under the Retail Sales Tax Act, and it appears to the head of the government funded body, in view of the nature of the lease, that it is not advisable to invite tenders;

(c) the space is acquired from another government funded body at fair market value; or

(d) there is an urgent need for the government funded body

(i) to vacate existing space and insufficient time is available to invite tenders, or

(ii) to vacate existing space because the continued use of that space is potentially injurious to the health or safety of employees of that government funded body or of the public,

and a lease entered into because of conditions referred to in subparagraphs (i) and (ii) shall not exceed 6 months at which time an invitation to tender shall be issued.

(3) Subsection 4(2) of the Act is repealed.

(4) Subsection 4(3) of the Act is amended by renumbering it as subsection 4(2) and by striking out the words and commas "The Lieutenant-Governor in Council may, by regulation," and substituting the words "The Lieutenant-Governor in Council may".

(5) Subsection 4(4) of the Act is amended by renumbering it as subsection 4(3).

(6) Subsection 4(5) of the Act is repealed and the following substituted:

(4) A lease for space that was originally publicly tendered that contains a provision for a renewal option, a reduction of the area of leased space or the renewal of the lease with a reduced area may be renewed with the approval of the Treasury Board

(a) in accordance with the original terms of the lease; or

(b) on terms more favourable to the government funded body where, in the opinion of the head of that government funded body those terms are consistent with the fair market value for that leased space.

(5) A lease for space that was not originally publicly tendered or that was originally publicly tendered without a clause for a further option to renew and a lease for an increase of the area of leased space may be renewed with the approval of the Lieutenant-Governor in Council

(a) in accordance with the original terms of the lease; or

(b) on terms more favourable to the government funded body where, in the opinion of the head of the government funded body, those terms are consistent with the fair market value for that leased space.

4. (1) Subsection 5(1) of the Act is amended by striking out the comma immediately after the word "may" and striking out the words and comma "where a contract for a public work so provides," and by striking out the words "or extension" wherever they occur in paragraphs (a), (b) and (c) and substituting a comma and the words "extension or the cumulative value of them".

(2) Subsection 5(2) of the Act is repealed and the following substituted:

(2) A government funded body may authorize change orders within the requirements of a contract or authorize extensions of the contract, where the value exceeds the limit under subsection (1), with the prior approval

(a) in the case of a department of the government, of the deputy minister and those changes shall be reported to the Treasury Board annually; and

(b) in the case of a government funded body other than a department of the government, of the board of directors, the school board or the council or local service district committee of the government funded body.

5. Section 6 of the Act is repealed.

6. (1) Subsection 7(1) of the Act is repealed and the following substituted:

Delegation of approval

7. (1) A deputy minister of a department of the government may delegate to a senior official in the department, appointed by the deputy minister, power to approve change orders, extensions or increased cost under section 5.

(2) Subsection 7(2) of the Act is amended by adding at the end of paragraph (a) the word "and", by striking out the semicolon and the word "and" at the end of paragraph (b) and substituting a period and by repealing paragraph (c).

7. (1) Subsection 8(1) of the Act is amended by striking out the words "rejecting the preferred bidder or".

(2) Paragraphs 8(3)(a) and (b) of the Act are repealed and the following substituted:

(a) if the House of Assembly is then in session, within 30 days after receipt of notification of the awarding of the contract by the government funded body; or

(b) if the House of Assembly is not then in session, within 30 days from the opening of the next session.

8. The Act is amended by repealing section 9 of the Act and substituting the following:

Where no tender called

9. Where a tender is not required to be invited because of paragraph 3(2)(a) or (b) or paragraph 4(1)(a) or (b), the government funded body shall, before a public work is to be executed under the direction of the head of a government funded body, or goods or services are to be acquired by a government funded body, or space is to be leased by a government funded body,

(a) obtain quotations from at least 3 legitimate dealers, suppliers, contractors or lessors by direct quotation; or

(b) establish for the circumstance a fair and reasonable price for the public work, the goods or services or the leased space through direct quotation substantiated by reference to trade catalogues, price lists or in a manner that the government funded body considers advisable.

Absence of bids

a9.1 (1) Where no bids are received following a public tender call, the head of the government funded body shall issue a 2nd public call for bids unless the delay resulting from inviting tenders a 2nd time would be injurious to the public interest, in which case the head of the government funded body may execute the public work or acquire the goods or services or lease the leased space in accordance with paragraphs 9(a) and (b).

(2) Where no bids are received following 2 successive public tender calls, the head of the government funded body may execute the public work or acquire the goods or services or lease the leased space in accordance with paragraphs 9(a) and (b).

9. Section 10 of the Act is amended

(a) by striking out the words and figures "paragraph 3(2)(b), (d) or (e), or paragraph 4(1)(b) or subsection 4(5)" and substituting the words and figures "paragraph 3(2)(b), (d) or (e), 4(1)(b) or (d) or subsection 4(4) or (5)";

(b) at paragraph (a) by striking out the words "a month of the awarding of the tenders" and substituting the figures and words "30 days after receipt of notification of the awarding of the contract by the government funded body"; and

(c) at paragraph (b) by striking out the figure "15" and substituting the figure "30".

10. Section 11 of the Act is amended by adding immediately after the word "services" the words "and leases".

11. Section 12 of the Act is amended by adding immediately

(a) after the word "Act" where it last appears a comma and the words and figures "regulations for naming a government funded body under paragraph 3(2)(g)"; and

(b) before the word "minister" the word "deputy".

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