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
.
2016 cP-41.001 s1
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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 theExecutive 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)
the
conseil
scolaire
as defined in the Schools Act, 1997,
(vi)
an
agency or authority of the province,
(vii)
the
Provincial Health Authority established under the Provincial Health Authority 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 the corporation established under the Oil and Gas Corporation Act
, this Act applies to those corporations and their subsidiaries 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.
2016 cP-41.001 s5; 2017 cI-7.1 s28; 2019 cO-6.1 s52
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.
2016 cP-41.001 s13
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.
2016 cP-41.001 s21
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
.
2016 cP-41.001 s23
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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.
2016 cP-41.001 s27
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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.
2016 cP-41.001 s29
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)
the
Public 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.
2016 cP-41.001 s36
(s. 31 in force November 3, 2017)
(ss. 1-11, 14-30 & 32-36 in force March 24, 2018)
(ss. 12 & 13 in force September 24, 2018)
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