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SNL2016 CHAPTER P-41.001

PUBLIC PROCUREMENT ACT
[To be Proclaimed ]
[s. 31 proclaimed November 3, 2017 - remainder of Act to be proclaimed ]

Amended:

 

CHAPTER P-41.001

AN ACT RESPECTING PROCUREMENT BY PUBLIC BODIES

(Assented to December 14, 2016)

Analysis


       
1.   Short title

       
2.   Definitions

       
3.   Purpose

       
4.   Labrador Inuit rights

       
5.   Application

              PART I
PROCUREMENT

       
6.   Procurement of commodities

       
7.   Exemptions

       
8.   Procurement of professional services

       
9.   Co-ordination of purchasing

     
10.   Management of procurement

     
11.   Post award requirements

     
12.   Supplier debriefing and complaint

     
13.   Supplier performance

              PART II
PUBLIC PROCUREMENT AGENCY

     
14.   Public Procurement Agency

     
15.   Chief procurement officer

     
16.   Powers, functions and duties of chief procurement officer

     
17.   Review by chief procurement officer

     
18.   Review

     
19.   Reports of the chief procurement officer

     
20.   Acquisition of commodities

     
21.   Purchases by other public bodies

              PART III
GENERAL

     
22.   Reporting of award information

     
23.   Agreements

     
24.   Government bound

     
25.   Procurement Advisory Council

     
26.   No liability

     
27.   Fees and forms

     
28.   Regulations by Lieutenant-Governor in Council

     
29.   Regulations by minister

              PART IV
CONSEQUENTIAL AMENDMENTS
AND REPEAL

     
30.   SNL2007 cE-11.01 Amdt.

     
31.   SNL2016 cI-2.1 Amdt.

     
32.   SNL2006 cR-7.1 Amdt.

     
33.   SNL2008 cR-13.1 Amdt.

     
34.   SNL1995 cW-12 Amdt.

     
35.   Repeal

     
36.   Commencement


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

Short title

        1. This Act may be cited as the Public Procurement Act .

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Definitions

        2. In this Act

             (a)  "agency" means the Public Procurement Agency continued under section 14 ;

             (b)  "best value" includes the best balance of cost, quality, performance and support, as achieved through a transparent, efficient and competitive procurement process using clear and fair evaluation and selection criteria;

             (c)  "bid" means an offer from a supplier, submitted in response to a call for bids, to supply commodities;

             (d)  "commodities" means goods, services, public works and lease of space;

             (e)  "contractor" means a supplier that has been awarded a contract by a public body;

             (f)  "electronic notification system" means an internet website or linked websites through which information about procurement is broadly and openly communicated;

             (g)  "framework" means the sum of this Act and its regulations, and the policies that govern procurement of commodities;

             (h)  "goods" means goods, chattels, material, personal property, movable property and other physical objects of every kind, including items required to be manufactured or on which a labour or skill is required to be expended before, upon or after delivery to a public body;

              (i)  "group purchasing" means the purchasing of commodities by 2 or more public bodies;

              (j)  "head of a public body" means

                      (i)  in the case of a department, the deputy minister,

                     (ii)  in the case of a public body referred to in subparagraph (q)(iv), the council or local service district committee, and

                     (ii)  in the case of other public bodies, the person responsible for the administration of the public body;

             (k)  "joint purchasing agreement" means an agreement entered into by the province and one or more other governments to provide for joint acquisition of commodities required by public bodies;

              (l)  "lease of space" means a transfer of the possession of space for a fixed period of time at a specified rent, and includes a renewal of a lease;

           (m)  "minister" means the minister appointed under the Executive Council Act to administer this Act;

             (n)  "open call for bids" means a publicly-advertised invitation to suppliers to submit a bid;

             (o)  "procurement" means the acquisition of commodities or professional services by public bodies by any means, including by purchase, rental or lease;

             (p)  "professional services" means the following services required by a public body:

                      (i)  legal services, and

                     (ii)  financial services relating to the provision of credit and instruments of monetary policy;

             (q)  "public body" means

                      (i)  a department of the government of the province, or in the case where procurement is on behalf of a department of the government of the province by the agency, the agency,

                     (ii)  a corporation in which not less than 90% of the issued common shares are owned by the Crown,

                    (iii)  a corporation established by an Act under which the corporation is made an agent of the Crown,

                    (iv)  a municipality or local service district under the Municipalities Act, 1999 , the City of Mount Pearl established by the City of Mount Pearl Act , the City of St. John's established by the City of St. John's Act and the City of Corner Brook established by the City of Corner Brook Act ,

                     (v)  a school board elected under the Schools Act, 1997 ,

                    (vi)  an agency or authority of the province,

                   (vii)  a regional health authority established under the Regional Health Authorities Act , and

                  (viii)  a board, commission, corporation, Royal Commission or other body designated by the Lieutenant-Governor in Council as a public body for the purpose of this Act;

              (r)  "public work" means the construction, re-construction, extension, enlargement, repair, maintenance, improvement and demolition of real property, including improvements to leased property;

             (s)  "real property" means land, buildings, structures, improvements and fixtures erected or placed upon, in, over or under land or affixed to land, and includes an interest in any of them;

              (t)  "services" means

                      (i)  all services incidental to the supply of goods including the provision of transportation of all kinds,

                     (ii)  printing and reproduction services,

                    (iii)  accounting, land surveying and voice telephone services,

                    (iv)  engineering services,

                     (v)  architectural services,

                    (vi)  banking services not captured by subparagraph (p)(ii),

                   (vii)  insurance services,

                  (viii)  services that require the giving of an opinion, creativity, the preparation of a design, or technical expertise except those services defined in paragraph (p), and

                    (ix)  all other services not considered to be professional services; and

             (u)  "supplier" means an individual, partnership, corporation, joint venture or other form of business organization engaged in the lawful supply of commodities.

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Purpose

        3. (1) The purpose of this Act is to establish a statutory framework which, through its operation, enables public bodies to achieve best value, transparency and accountability in procurement.

             (2)  For the purpose of the efficient, effective and ethical procurement required by public bodies to carry out their mandates, public bodies shall

             (a)  promote the integrity and fairness of, and public confidence in, procurement;

             (b) foster and encourage participation in procurement by suppliers;

             (c)  promote competition among suppliers in procurement;

             (d)  provide for the fair and equitable treatment of all suppliers and contractors;

             (e)  promote making information on procurement publicly available; and

             (f)  value diversity in procurement.

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Labrador Inuit rights

        4. This Act and regulations made under this Act shall be read and applied in conjunction with the Labrador Inuit Land Claims Agreement Act and, where a provision of this Act or regulations under this Act is inconsistent or conflicts with a provision, term or condition of the Labrador Inuit Land Claims Agreement Act , the provision, term or condition of the Labrador Inuit Land Claims Agreement Act shall have precedence over the provision of this Act or regulations made under this Act.

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Application

        5. (1) This Act applies to procurement by public bodies, and with respect to the corporation established under the Energy Corporation Act and to the council established under the Research and Development Council Act , this Act applies to that corporation and that council and the subsidiaries of them except as provided in those Acts.

             (2)  Where the province enters into a joint purchasing agreement, the province may, notwithstanding this Act, acquire commodities under the agreement and the provisions of the agreement with respect to the acquisition of commodities shall apply to the acquisition instead of the provisions of this Act.

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PART I
PROCUREMENT

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Procurement of commodities

        6. Where commodities are required by a public body, the public body shall ensure that procurement is conducted and the commodities are acquired in accordance with the framework.

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Exemptions

        7. Notwithstanding section 6 , the Lieutenant-Governor in Council may exempt procurement from the requirements of this Act where it is in the best interest of the economic development of the province.

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Procurement of professional services

        8. (1) The Treasury Board may establish a policy for the procurement of professional services by public bodies.

             (2)  Where professional services are required by a public body, the public body shall ensure that procurement is conducted and the professional services are acquired in accordance with the policy referred to in subsection (1).

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Co-ordination of purchasing

        9. (1) The chief procurement officer may require that public bodies coordinate the group purchasing of commodities or jointly purchase commodities where, in the opinion of the chief procurement officer, it is in the best interest of efficiency to do so.

             (2)  Notwithstanding subsection (1), upon application by a public body, the minister may exempt that public body from a requirement for group purchasing or joint purchasing.

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Management of procurement

      10. (1) A head of a public body shall ensure that, with respect to procurement of commodities,

             (a)  procurement by the public body is managed and documented in accordance with the purpose of this Act;

             (b)  all procurement activities of the public body are in clear support of the approved mandate and within the budgetary allocation of the public body;

             (c)  procurement by the public body is carried out by staff of the public body with the required knowledge, skills and expertise to work effectively within the framework;

             (d)  management oversight, processes and controls exist within the public body to ensure that procurement is carried out according to the requirements of the framework;

             (e)  appropriate action is taken where there is a failure to comply with the framework;

             (f)  an annual procurement plan is filed with the agency when required by the regulations; and

             (g)  the procurement activities of the public body are published and reported in the manner prescribed in the regulations.

             (2)  A head of a public body shall ensure that procurement of professional services by the public body is carried out in accordance with the policy established by the Treasury Board under section 8 .

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Post award requirements

      11. (1) A public body shall establish clearly the requirements for fulfilling the terms of a contract, and monitor the performance of the contractor throughout its duration to ensure that its terms and conditions are met.

             (2)  A public body shall maintain complete records for all phases of the process of procurement of commodities in the manner prescribed in the regulations.

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Supplier debriefing and complaint

      12. (1) An unsuccessful bidder may request a meeting with the public body that issued the open call for bids following the award of a contract to obtain information concerning the reasons his or her bid was not successful and the public body shall comply with the request and provide the information.

             (2)  A supplier may register a complaint respecting a procurement process in which the supplier participated in the manner prescribed in the regulations or the policy established by Treasury Board under section 8 , as appropriate.

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Supplier performance

      13. A supplier shall comply with the framework respecting supplier performance.

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PART II
PUBLIC PROCUREMENT AGENCY

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Public Procurement Agency

      14. (1) The Government Purchasing Agency is continued under the name Public Procurement Agency, and is a branch of the public service of the province.

             (2)  The agency shall be under the immediate management and control of the chief procurement officer appointed under section 15 .

             (3)  The employees required by the agency to carry out its powers, functions and duties, other than the chief procurement officer, shall be appointed in the manner authorized by law.

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Chief procurement officer

      15. (1) The Lieutenant-Governor in Council shall appoint a person to be the chief procurement officer.

             (2)  Unless he or she sooner resigns, dies or is removed from office, the chief procurement officer shall hold office for 6 years from the date of his or her appointment, and may be reappointed.

             (3)  The chief procurement officer may be removed for cause by the Lieutenant-Governor in Council following the passing by the House of Assembly of a resolution requesting the Lieutenant-Governor in Council to do so.

             (4)  The Lieutenant-Governor in Council may appoint a person to perform the duties of the chief procurement officer in the event of a vacancy in the office of the chief procurement officer or during the illness or absence of the chief procurement officer and the person so appointed has for these purposes the powers and shall perform all the functions and duties of the chief procurement officer.

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Powers, functions and duties of chief procurement officer

      16. (1) The chief procurement officer shall

             (a)  administer the agency;

             (b)  supervise the acquisition of commodities under sections 20 and 21 ;

             (c)  develop and publish general policies for the procurement of commodities for application by all public bodies;

             (d)  establish an electronic notification system for use by all public bodies;

             (e)  publish information about procurement activities;

             (f)  maintain effective oversight of the procurement activities of public bodies, particularly with respect to

                      (i)  supplier performance,

                     (ii)  best value analysis and reporting, and

                    (iii)  compliance monitoring and reporting;

             (g)  provide advice to public bodies relating to the interpretation and application of the framework;

             (h)  develop standardized procedures for the procurement of commodities, documents and training programs for use by public bodies;

              (i)  ensure that public bodies have accessible and effective supplier complaint procedures; and

              (j)  do those other things and perform those other duties that the minister may direct.

             (2)  The chief procurement officer shall, in the development of the general policies respecting the procurement of commodities, apply those social, economic and environmental priorities that the Lieutenant-Governor in Council may direct.

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Review by chief procurement officer

      17. (1) The chief procurement officer shall review the practices of public bodies for acquiring commodities and make recommendations where the chief procurement officer considers it appropriate.

             (2)  A public body shall give the chief procurement officer access to all records relating to procurement of commodities held by the public body.

             (3)  Where the chief procurement officer makes recommendations to a public body under subsection (1), the public body shall implement the recommendations to the extent practicable.

             (4)  The chief procurement officer may, where it is in the interest of efficiency to do so, designate a public body to procure commodities on behalf of another public body.

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Review

      18. (1) The chief procurement officer shall review the practices of public bodies for procuring professional services and may make recommendations to those public bodies respecting compliance with the policy established by the Treasury Board under section 8 .

             (2)  A public body shall give the chief procurement officer access to all records relating to the procurement of professional services held by the public body.

             (3)  The chief procurement officer shall provide the recommendations made under subsection (1) to the Treasury Board, and the Treasury Board may direct the public body to comply with the policy established by the Treasury Board under section 8 .

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Reports of the chief procurement officer

      19. (1) The chief procurement officer shall provide to the minister the information respecting procurement which the minister may request, including information relating to specific procurements and the general conduct of procurement.

             (2)  In addition to the information referred to in subsection (1), the chief procurement officer shall provide to the minister information respecting another expenditure of public money through procurement which, in the opinion of the chief procurement officer, should be brought to the attention of the minister.

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Acquisition of commodities

     20. (1) The agency shall acquire by purchase or otherwise all commodities that are required by the departments of the public service in accordance with the framework.

             (2)  Notwithstanding subsection (1), the agency may permit the acquisition of commodities otherwise than through the agency, subject to this Act, where the chief procurement officer is satisfied that it is in the interest of efficiency to do so, and it may limit its permission to specified commodities, to an amount or a particular time period, or to particular departments.

             (3)  Notwithstanding subsection (1), the chief procurement officer, where satisfied that it is in the interest of efficiency to do so, may delegate to a person in the public service the power to acquire commodities on behalf of the agency in accordance with this Act.

             (4)  Where commodities are acquired under subsection (2) or (3), the agency shall be advised as soon as is practical and shall be furnished with all details of the acquisition in a form that the chief procurement officer may require.

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Purchases by other public bodies

     21. (1) Where the chief procurement officer is satisfied that it is in the interest of efficiency to do so, the agency shall acquire, by purchase or otherwise, all commodities that are required by a public body that is not a department of the government and to which public body the Lieutenant-Governor in Council directs that this section shall apply.

             (2)  Notwithstanding subsection (1), the agency may, where the chief procurement officer is satisfied that it is in the interest of efficiency to do so, permit the acquisition by a public body of specified commodities, subject to this Act, and may limit its approval to an amount or to a particular time period.

             (3)  Notwithstanding subsection (1), the chief procurement officer, where satisfied that it is in the interest of efficiency to do so, may delegate to a person in the public service the power to acquire commodities on behalf of the agency in accordance with this Act.

             (4)  Where commodities are purchased under subsection (2) or (3), the agency shall be advised as soon as is practical and shall be furnished with all details of the purchase in a form that the chief procurement officer may prescribe.

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PART III
GENERAL

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Reporting of award information

      22. A public body shall, within 30 days of an award being made under this Act and the regulations, post the award information required by the regulations on the electronic notification system.

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Agreements

      23. The minister may enter into agreements respecting procurement of commodities, subject to the Intergovernmental Affairs Act .

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Government bound

      24. The government is bound by the actions of the agency and the chief procurement officer acting within the scope of authority conferred by this Act.

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Procurement Advisory Council

      25. (1) The minister shall establish a Procurement Advisory Council which shall provide advice and make recommendations to the minister respecting matters relating to procurement and, in particular, how the purpose of this Act may best be achieved.

             (2)  The chief procurement officer shall be the chairperson of the Procurement Advisory Council.

             (3)  The members of the council shall be appointed by the minister.

             (4)  The minister shall, by regulation, prescribe

             (a)  the terms of reference for the council;

             (b)  the composition of the council; and

             (c)  the duties of the council.

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No liability

      26. An action does not lie against the minister, the chief procurement officer, the agency, an employee of the agency, a public body, an employee of a public body or other person acting in good faith in the execution of a duty imposed or a decision made under the authority of this Act or the regulations.

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Fees and forms

      27. The minister may set fees and establish forms for the purpose and administration of this Act and the regulations.

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Regulations by Lieutenant-Governor in Council

      28. The Lieutenant-Governor in Council may make regulations

             (a)  respecting the manner in which public bodies procure commodities;

             (b)  respecting when an open call for bids is not required  respecting the procurement of commodities;

             (c)  respecting alternative procurement approaches for the procurement of commodities;

             (d)  respecting the manner in which public bodies shall maintain records respecting procurement of commodities;

             (e)  respecting when annual procurement plans shall be required from public bodies, and the form and content of those plans;

             (f)  respecting the manner in which bids are to be evaluated;

             (g)  respecting the manner in which contracts are to be awarded;

             (h)  establishing the processes to be followed for the submitting and treatment of supplier complaints;

              (i)  respecting supplier performance;

              (j)  establishing monetary amounts at which an open call for bids is required;

             (k)  establishing monetary amounts below which there is no requirement to issue an open call for bids;

              (l)  governing the form and content of the electronic notification system;

           (m)  defining the scope, content and limits of policies respecting the procurement of commodities that may be established by the chief procurement officer;

             (n)  defining the information about procurement activities that shall be published;

             (o)  establishing time periods for the required publication of information;

             (p)  defining a word or phrase not defined in this Act; and

             (q)  generally, to give effect to this Act.

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Regulations by minister

      29. The minister may make regulations respecting

             (a)  the terms of reference for the Procurement Advisory Council;

             (b)  the composition of the Procurement Advisory Council; and

             (c)  the duties of the Procurement Advisory Council.

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PART IV
CONSEQUENTIAL AMENDMENTS
AND REPEAL

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SNL2007 cE-11.01 Amdt.

      30. Section 17.1 of the Energy Corporation Act is repealed and the following substituted:

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Application of Public Procurement Act

   17.1 (1) The corporation or a subsidiary is exempt from the Public Procurement Act with respect to procurement in the following areas:

             (a)  energy and energy products;

             (b)  where the corporation or a subsidiary is acting in a strategic partnership, joint venture, or equity investment with other public bodies or private sector entitites; or

             (c)  for the purpose of meeting the requirements of a benefit arrangement.

             (2)  With respect to procurement activities that are exempt under paragraph (1)(b) or (c), the corporation and a subsidiary shall, every 6 months, report to the minister responsible for the administration of this Act on their procurement activities and shall include a summary of contracts entered into and the identities of suppliers to whom the contracts have been awarded.

             (3)  The minister responsible for the administration of this Act shall, upon receipt of a report under subsection (2), send a copy of the report to the chief procurement officer appointed under the Public Procurement Act , who shall post a copy of it on the electronic notification system.

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SNL2016 cI-2.1 Amdt.

      31. The Schedule to the Independent Appointments Commission Act is amended by adding immediately after the line referring to "Pippy Park Commission Act " the words "Public Procurement Act , subsection 15(1)".

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SNL2006 cR-7.1 Amdt.

      32. Sections 17.1 to 17.3 of the Regional Health Authorities Ac t are repealed.

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SNL2008 cR-13.1 Amdt.

      33. Section 25 of the Research and Development Council Act is repealed and the following substituted:

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Application of Public Procurement Act

      25. (1) The council or a subsidiary of the council is exempt from the Public Procurement Act respecting procurement for research and development purposes not related to the daily operations of the council or a subsidiary of the council.

             (2)  With regard to procurement activities that are exempt under subsection (1), the council and a subsidiary of the council shall, every 6 months, report to the minister on their procurement activities and shall include a summary of contracts entered into and the identity of suppliers to whom the contracts have been awarded.

             (3)  The minister shall, upon receipt of a report under subsection (2), send a copy of the report to the chief procurement officer appointed under the Public Procurement Act , who shall post a copy of it on the electronic notification system.

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SNL1995 cW-12 Amdt.

      34. Part IV of the Works, Services and Transportation Act is repealed.

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Repeal

      35. The following Acts and regulations are repealed:

             (a)  the Government Purchasing Agency Act ;

             (b)  the Intergovernmental Joint Purchasing Act ;

             (c)  thePublic Tender Act ; and

             (d)  the Public Tender Regulations, 1998 , Newfoundland and Labrador Regulation 103/98.

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Commencement

      36. (1) This Act, or a section, subsection, paragraph or subparagraph of this Act, comes into force on a day or days to be proclaimed by the Lieutenant-Governor in Council.

             (2)  Notwithstanding subsection (1), the requirements of this Act respecting the establishment, operation and use of the electronic notification system take effect on a day to be proclaimed by the Lieutenant-Governor in Council.

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