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Newfoundland Regulation 1998 Public Tender Regulations, 1998 (Filed
December 7, 1998) Under the
authority of section 12 of the Public
Tender Act, the Lieutenant-Governor in Council makes the following
regulations. Dated at John R.
Cummings, Q.C. REGULATIONS Analysis 1. Short
title 2. Definition 3. Call
for tenders 4. Opening
of tenders 5. Particulars
to be provided 6. Delegation
of powers 7. Exception 8. Information
to be provided 9. Request
for proposal 10. No
proposal received 11. Products
registry 12. Repeal Short title 1. These regulations may be cited as
the Public Tender Regulations, 1998. Definition 2. In these regulations "Act"
means the Public Tender Act. Call for tenders 3. (1) Where a tender is required to
be invited under section 3 or 4 of the Act, the government funded body shall
call for tenders (a) by
a method of notice employing electronic or written media established by the
government funded body, with the approval of the minister responsible for the
government funded body, for consistent application until an alternative method
has been approved by the minister; or (b) where
no method of notice is approved under paragraph (a), by publishing a call for
tenders in at least one daily newspaper published and in general circulation in
the province and in the other printed media that the government funded body
considers appropriate to ensure adequate notice. (2) A
call for tender shall include the following: (a) a
brief description of the public work to be executed, the goods or services to
be acquired or the space to be leased and the location of the execution,
acquisition or space; (b) the
place where a person may obtain information and documents necessary to tender; (c) the
conditions for obtaining the documents to tender; (d) the
place where the tenders are to be sent; (e) the
date and time limit for submitting tenders; and (f) the time and place of the opening of the tenders. (3) Tenders
submitted under the Act or these regulations shall be in writing. (4) Where
a tender is required to be invited under section 3 or 4 of the Act, a
government-funded body may include in the tender, as a pre-qualifier, reference
to a bidder's past performance. Opening of tenders 4. (1) A government funded body
inviting or causing to be invited tenders shall open the tenders in a place
where the public is permitted to watch and at the time indicated in the call
for tenders. (2) A
tender may not be opened unless there are at least 2 witnesses present who are
acceptable to the government funded body opening the tender. Particulars to be provided 5. Where a government funded body
intends to lease space, it shall provide the following to persons interested in
tendering: (a) a
statement of all requirements respecting the space; (b) specification
standards for the space; (c) an
offer form; (d) a
proposed lease; and (e) other
information as the government funded body may think necessary to ensure
tenderers have as much information as possible that is relevant to the lease
proposal. Delegation of powers 6. (1) A minister of a department of
the government may delegate the power to approve change orders, extensions or
increased costs under section 5 of the Act so long as the delegation (a) is
in writing; (b) specifies
the position title of the person to whom the power is delegated; and (c) specifies
the monetary limit up to which the person may exercise the delegated power. (2) A
head of a government funded body, other than a government department, may
delegate power under subsection 7(2) of the Act so long as the delegation (a) is
in writing; (b) specifies
the position title of the person to whom the power is delegated; and (c) specifies
the monetary limit up to which the person may exercise the delegated power. Exception 7. Under subsection 8(2) of the Act,
notwithstanding that tenders are invited in accordance with the Act, the head
of a government funded body may, without first obtaining the approval of the
Lieutenant-Governor in Council, reject the preferred bidder and award the
contract to a person other than the preferred bidder, when, in the opinion of
the head of the government funded body, the delay resulting from proceeding in
accordance with the Act and regulations would result in or compound a pressing
emergency. Information to be provided 8. Where a head of a government funded
body is required to inform the Minister of Works, Services and Transportation
under subsection 8(3) of the Act or under section 10 of the Act, the head of
the government funded body shall provide, within 30 days of the awarding of the
contract or the execution of public work or the acquisition of goods or
services or the space leased to the minister, the information required in the
form prescribed by the minister or further information as the minister may
request. Request for proposal 9. (1) Where the carrying out of a
request for proposals has been authorized under paragraph 3(2)(j) of the Act, it
shall be carried out as provided for in this section. (2) Section
8 of the Act and sections 3 and 8 of these regulations shall, with the
necessary changes, apply to a request for proposals. (3) Each
request for proposals shall clearly state the work or acquisition requirement,
or the problem to be addressed by the proponent. (4) Each
request for proposals shall express the criteria, in addition to price, to be
used in evaluating proposals and the methods to be used in weighing and
evaluation of that criteria and no criterion shall be used that is not
expressed in the request for proposals. (5) Where
a request for proposals is carried out, a government funded body may, in the
course of an evaluation, request and consider additional information from a proponent. (6) A
government funded body may negotiate a detailed contract with the proponent
whose proposal ranks highest following the evaluation process, but the
resultant contract shall contain substantially the terms of the proposal and,
where contract terms cannot be agreed upon, the government funded body may
reject that proposal and negotiate with successive proponents in order of
evaluation ranking. No proposal received 10. (1) Where no proposals or no
proposals that are acceptable to the government funded body are received
following a request for proposals, the head of the government funded body may
negotiate with sources identified as having the capability to execute the
public work or supply the acquisition and may, with the prior consent of the minister
having responsibility for the government funded body, enter into a contract for
the work or acquisition with the source considered by the head of the
government funded body to offer the best value. (2) Subsection
8(3) of the Act respecting a report to the House of Assembly applies, with the
necessary changes, where a contract is entered into under subsection (1). Products registry 11. (1) In this section,
"registry" means the registry of products manufactured in the
province, and the generic specifications of those products, maintained by the
Minister of Industry, Trade and Technology. (2) The
registry shall record the names of qualified product manufacturers and the
generic specification for their products. (3) The
generic specifications of products contained in the registry shall be provided
by the manufacturers of the products. (4) Government
funded bodies or a person acting on behalf of a government-funded body shall
refer to the registry when preparing tenders and shall use generic specifications
recorded in the registry which satisfy the procurement requirement to the
extent that it is reasonably possible to do so. (5) Where
the specifications of the tender include the provision of products not directly
identified in the tender documents, the successful bidder shall, in the
performance of the contract, to the extent that it is reasonably possible to do
so, refer to the registry to identify a generic specification which satisfies
the procurement requirement and allow registered manufacturers that meet this
specification an opportunity to bid. (6) The
Minister of Works, Services and Transportation may require auditing and
reporting that he or she considers necessary to ensure compliance with this
section. (7) The
registry comes into effect on the date of its first publication. Repeal 12. The
Public Tender Regulations,
Consolidated Newfoundland Regulation 763/96, are repealed. ©Earl G. Tucker, Queen's Printer |