Revised Statutes of Newfoundland 1990 Chapter P-45

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Revised Statutes of Newfoundland 1990

CHAPTER P-45

AN ACT TO PROVIDE FOR THE CALLING OF TENDERS FOR THE EXECUTION OF PUBLIC WORKS AND THE ACQUISITION OF GOODS AND SERVICES BY GOVERNMENT FUNDED BODIES
Analysis

1. Short title

2. Definitions

3. Tenders required

4. Tenders when leasing

5. Change orders and extensions

6. Unit price contracts

7. Delegation of approval

8. Tender not awarded to preferred bidder

9. Where no tender called

10. No tender situations to be tabled

11. Tenders public

12. Regulations

Schedule

Short title

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

1984 c36 s1

2. In this Act

(a) "goods or services" means goods and services provided to government funded bodies;

(b) "government funded body" includes

(i) a department of the government of the province, or in the case where goods or services are acquired on behalf of a department of the government of the province by the Government Purchasing Agency under the Department of Works, Services and Transportation Act, the Government Purchasing Agency,

(ii) a company 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, the City of Mount Pearl as established by the City of Mount Pearl Act, the City of St. John's as established by the City of St. John's Act and the City of Corner Brook as established by the City of Corner Brook Act,

(v) a school board established under the Schools Act,

(vi) an agency or authority of the province,

(vii) a hospital included in the Schedule to the Hospitals Act, and

(viii) a board, commission, corporation, Royal Commission or other body listed in the Schedule to this Act or added to the Schedule by order of the Lieutenant-Governor in Council,

but does not include

(ix) Marystown Shipyard Limited, and

(x) NORDCO Limited;

(i) in the case of a department of the government, the minister of the department, and

(ii) in the case of a government funded body other than a department of the government, the person responsible for the administration of the government funded body;

(d) "person responsible for the administration of the government funded body" means the chief executive officer, or in the absence of a chief executive officer the person who has the duties and functions of that position, except that in the case of a government funded body described in subparagraph (b)(iv) it means the council or local service district committee;

(e) "preferred bidder" means the preferred bidder as determined under the Provincial Preference Act;

(f) "public work" means the construction, extension, enlargement, repair, maintenance or improvement at the expense of a government funded body of a building, structure, road or other work, whether of the preceding kind or not, in, under or over real property and includes the acquisition by a government funded body by purchase, lease or otherwise of a public work specifically constructed for the purpose of that acquisition;

(g) "services" do not include legal, engineering, architectural, accounting, land surveying, banking or insurance services or other services that provide the opinion of a professional; and

(h) "tender" means a call for tender by written public advertisement.

1984 c36 s2; 1985 c13 s10; 1987 c41 s17;
1988 c35 s443(18); 1989 c33 Sch B

3. (1) Where a public work is to be executed under the direction of a government funded body or goods or services are to be acquired by a government funded body, the government funded body shall invite tenders for the execution or acquisition.

(2) Notwithstanding subsection (1), the government funded body is not required to invite tenders

(a) where the estimated cost of the work or acquisition is not more than $5,000;

(b) where the estimated cost of the work or acquisition is not more than $30,000, and it appears to the head of the government funded body that in view of the nature of the work or acquisition it is not advisable to invite tenders;

(d) in the case of a pressing emergency where the delay resulting from inviting tenders would be injurious to the public interest; or

(e) where there is only 1 available source of acquisition or work.

(3) In relation to the prescribed goods and services that are of a nature that they are tendered for less than $5,000, the Lieutenant-Governor in Council may prescribe that this Act does apply and tenders are required, notwithstanding paragraph (2)(a).

1984 c36 s3

4. (1) Where a government funded body requires space and intends to lease the space, the government funded body shall in the prescribed manner invite tenders for the leasing of the space required unless

(a) the estimated rental value of the space is not more than $5,000; or

(b) the estimated rental value of the space is not more than $30,000, 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.

(2) Where a government funded body requires space the estimated rental value of which is not more than $5,000 and intends to lease the space, the government funded body shall lease the space in the prescribed manner.

(3) The Lieutenant-Governor in Council may, by regulation, exempt particular leasing situations from the application of this section where, in his or her opinion, the government funded body reasonably requires a particular space.

(4) For the purpose of this section "estimated rental value" means the annual rental value of the space to be leased estimated on the basis of the market rental value.

(5) A renewal of a lease for leased space in accordance with the original terms of the lease and a lease for an extension of the area of leased space in accordance with the original terms of the lease are not subject to this section but the lease and renewals of leases are subject to the approval of the Lieutenant-Governor in Council.

(6) Leasehold improvements made by a government funded body shall be considered to be a public work.

1984 c36 s4

5. (1) A government funded body may, where a contract for a public work so provides, authorize change orders within the requirements of a contract or authorize extensions of the contract so long as

(a) in the case of a contract up to the value of $100,000 a change order or extension does not exceed the value of $15,000;

(b) in the case of a contract of a value equal to or greater than $100,000 but less than $500,000, a change order or extension does not exceed the value of $15,000 or 10% of the value of the original tender, whichever is greater; and

(c) in the case of a contract of a value equal to or greater than $500,000, a change order or extension does not exceed the value of $50,000 or 5% of the value of the original contract, whichever is greater,

subject to the prior approval of the head of the government funded body.

(2) Where a contract for a public work so provides, 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 set out in subsection (1), subject to the prior approval

(a) in the case of a department of the government, of Treasury Board; and

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

(3) References in subsection (1) to values are to the total of values of change orders within the requirements of a contract and extensions of the contract.

1984 c36 s5

6. Where a contract is awarded for a public work in unit prices and the cost of the public work is expected to increase by more than 10% of the original value of the contract because of a variation in quantity from those estimated in the contract, approval of the head of the government funded body is required before the increased cost may be incurred and notification shall be made as soon as practicable of the circumstances for which the increase is required by the head of the government funded body to,

(a) in the case of a department of the government, Treasury Board; and

1984 c36 s6

7. (1) A minister of a department of the government may delegate to the deputy minister, or other senior official in the department that he or she may appoint, power to approve change orders, extensions or increased cost under sections 5 and 6.

(2) In relation to a government funded body other than a government department,

(a) the head of the government funded body may delegate, subject to the approval of the government funded body, power to approve change orders or extensions under subsection 5(1);

(b) the government funded body may delegate, subject to the approval of the Lieutenant-Governor in Council, power to approve change orders or extensions under subsection 5(2); and

(c) the head of the government funded body may, subject to the approval of that body, delegate to a senior official of the body power to approve increased costs under section 6.

1984 c36 s7

8. (1) Where tenders are invited in accordance with this Act and it appears to the government funded body inviting the tender not to be expedient to award the contract to the preferred bidder, the head of the government funded body shall report to and obtain the authority of the Lieutenant-Governor in Council before rejecting the preferred bidder or awarding the contract to a person other than the preferred bidder.

(2) Notwithstanding subsection (1), a head of a government funded body may, where authorized by the regulations to do so and as prescribed, reject the preferred bidder and award the contract to a person other than the preferred bidder.

(3) Where a contract is awarded under this Act by a government funded body to a person other than a preferred bidder, the head of the government funded body shall inform the Minister of Works, Services and Transportation, who shall table a summary of the successful tender together with a report including the reasons why the tender was so awarded, in the House of Assembly,

(a) if the House of Assembly is then in session, within a month of the awarding of the contracts; or

(b) if the House of Assembly is not then in session, within 15 days from the opening of the next session.

(4) This section does not apply where a tender has been invited but in relation to which no contract is awarded.

1984 c36 s8; 1989 c33 Sch B

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

(a) obtain prices from at least 3 legitimate dealers, suppliers or contractors by direct quotation or by reference to trade catalogues or price lists or by the means that the government funded body may consider advisable; or

(b) establish for the circumstances a fair and reasonable price for the public work or the goods or services.

1984 c36 s9

10. Where a public work is executed or goods or services are acquired or space is leased by a government funded body and a tender is not required to be invited because of paragraph 3(2)(b), (d) or (e), or paragraph 4(1)(b) or subsection 4(5), the head of the government funded body shall inform the Minister of Works, Services and Transportation of the public work or goods or services or lease and the Minister of Works, Services and Transportation shall table a report indicating the public works so executed or the goods or services so acquired or the space so leased and the reasons why the tender was not invited, in the House of Assembly,

(a) if the House of Assembly is then in session, within a month of the awarding of the tenders; or

(b) if the House of Assembly is not then in session, within 15 days from the opening of the next session.

1984 c36 s10; 1989 c33 Sch B

11. Tenders for public works, goods or services called under this Act shall be opened in public at the prescribed time and place.

1984 c36 s11

12. The Lieutenant-Governor in Council may make regulations for the purpose of carrying out this Act, including regulations defining terms used in this Act and regulations providing the terms under which a minister may delegate his or her power under section 7.

1984 c36 s12

Schedule

Agricultural Products Marketing Board

Alcohol and Drug Dependency Commission

B.L.C. Building Corporation Limited

Bell Island Hospital Building Corporation Limited

Board of Governors of the Avalon Community College

Board of Governors of the Cabot Institute of Applied Arts and Technology

Board of Governors of the Central Community College

Board of Governors of the Eastern Community College

Board of Governors of the Fisher Institute of Applied Arts and Technology

Board of Governors of the Labrador Community College

Board of Governors of the Newfoundland and Labrador Institute of Fisheries and Marine Technology

Board of Governors of the Western Community College

C.A. Pippy Park Commission

Children's Hospital Corporation

Corner Brook Hospital Buildings Corporation Limited

Fisheries Loan Board of Newfoundland

Grace Hospital Extension Corporation Limited

Health Sciences Complex

Hotel Buildings Limited

Memorial University of Newfoundland

Newfoundland Hardwoods Limited

Newfoundland Hospital and Nursing Home Association

Newfoundland and Labrador Computer Services Limited

Newfoundland and Labrador Housing Corporation

Newfoundland and Labrador Hydro

Newfoundland Liquor Corporation

Newfoundland Medical Care Commission

Newfoundland Municipal Financing Corporation

Northern Hospitals Buildings Corporation Limited

Pepperrell Hospital Reconstruction Corporation Limited

Public Libraries Board

St. John's Infirmary Building Corporation Limited

Workers' Compensation Commission

1984 c36 Sch; 1988 c40 s8(1)