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NEWFOUNDLAND AND LABRADOR
REGULATION 103/98

Public Tender Regulations, 1998
under the
Public Tender Act
(O.C. 98-683)

(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 St. John’s , December 3, 1998 .

John R. Cummings, Q.C.
Deputy Clerk of the Executive Council

REGULATIONS

Analysis



Short title

        1. These regulations may be cited as the Public Tender Regulations, 1998.

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Definition

        2. In these regulations "Act" means the Public Tender Act .

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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).

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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.

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Repeal

      12. The Public Tender Regulations , Consolidated Newfoundland Regulation 763/96, are repealed.