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RSNL1990 CHAPTER P-45

PUBLIC TENDER ACT

Amended:

1991 c38 s2; 1991 c40 s35; 145/91; 1994 c11 s7; 1994 c46;
1995 c37 s23; 1996 cC-22.1 s30; 1996 cT-0.01 s18; 1997 c42;
1997 c42; 1998 c10; 1998 cI-19.1 s5; 1999 c11; 2001 c39;
2001 c42 s35; 2001 cN-3.1 s2; 2004 cL-3.1 s57; 2004 cG-6.1 s10;
2004 c51 s1; 2009 cR-15.01 s123

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



Short title

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

1984 c36 s1

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Definitions

        2. In this Act

             (a)  "goods or services" means goods or 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, 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,

                    (ix)  [Rep. by 2004 c51 s1]

             (c)  "head of the government funded body" means

                      (i)  in the case of a department of the government, the deputy 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;

          (c.1)  "lease" means a transfer of the possession of leased space for a fixed period of time at a specified rent and for the purpose of this Act includes a renewal of a lease;

             (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 bidder submitting the lowest qualified bid;

              (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;

           (f.1)  "qualified bid" means a bid that meets the specifications of the tender;

             (g)  "services" does not include legal, engineering, architectural, accounting, land surveying, banking or insurance services, voice telephone services, or other services that require the giving of an opinion, creativity, the preparation of a design, or technical expertise; and

             (h)  "tender" means a call for public tender as prescribed by the regulations.

1984 c36 s2; 1985 c13 s10; 1987 c41 s17; 1988 c35 s443(18); 1989 c33 Sch B; 1994 c46 s1; 1995 c37 s23; 1997 c42 s1; 1998 c10 s1; 1998 cI-19.1 s5; 1999 c11 s1; 2004 c51 s1

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Labrador Inuit rights

      2.1 This Act shall be read and applied in conjunction with the Labrador Inuit Land Claims Agreement Act and, where a provision of 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.

2004 cL-3.1 s57

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Tenders required

        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, in the case of goods or services is not more than $10,000, and in the case of a public work is not more than $20,000, exclusive of goods and services tax imposable under Part IX of the Excise Tax Act (Canada);

             (b)  where the estimated cost of the work or acquisition is not more than $25,000, exclusive of tax imposable under Part IX of the Excise Tax Act (Canada), 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;

             (c)  where the work can be more expeditiously or economically executed by the employees of the government funded body or, with the prior approval of the Treasury Board, the employees of another government funded body,

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

             (e)  where the dealer, supplier or contractor providing the work or acquisition is the only source of that work or acquisition;

              (f)  where the government funded body has, in writing, delegated its authority to invite a tender to another government funded body which has invited a tender on behalf of the 1st government funded body and has awarded the contract in accordance with the Act;

             (g)  where an acquisition is for the purpose of resale or is incorporated into a product for resale by a government funded body named by regulation;

             (h)  where set rates have been established by the board acting under the Public Utilities Act ;

          (h.1)  where the work involves emergency acquisition of parts, repairs or maintenance, or unknown work identified during refit, or where a lease is required on an emergency basis, in relation to ferry vessels operated by the government;

              (i)  where, in the opinion of the Minister of Industry, Trade and technology. and subject to the approval of the Lieutenant-Governor in Council, the work or acquisition is for an economic development purpose; or

              (j)  where, in the opinion of the head of the government funded body, inviting a tender would not achieve the best value and the government funded body has, through the minister responsible for it, obtained the approval of the Lieutenant-Governor in Council to carry out a request for proposals, as prescribed by the regulations, instead of a tender call.

             (3)  In relation to the prescribed goods and services that are of a nature that they are tendered for not more than $10,000, exclusive of goods and services tax imposable under Part IX of the Excise Tax Act (Canada), the Lieutenant-Governor in Council may prescribe that this Act does apply and tenders are required, notwithstanding paragraph (2)(a).

1984 c36 s3; 1994 c46 s2; 1996 cT-0.01 s18; 1998 c10 s2; 2001 c39 s1; 2009 cR-15.01 s123

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Tenders when leasing

        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 $10,000, exclusive of goods and services tax imposable under Part IX of the Excise Tax Act ( Canada );

             (b)  the estimated rental value of the space is not more than $30,000 exclusive of goods and services tax imposable under Part IX of the Excise Tax Act (Canada), 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;

             (c)  the space is acquired from another government funded body at fair market value; or

             (d)  there is an urgent need for the government funded body

                      (i)  to vacate existing space and insufficient time is available to invite tenders, or

                     (ii)  to vacate existing space because the continued use of that space is potentially injurious to the health or safety of employees of that government funded body or of the public,

and a lease entered into because of conditions referred to in subparagraphs (i) and (ii) shall not exceed 6 months at which time an invitation to tender shall be issued.

             (2)  The Lieutenant-Governor in Council may 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.

             (3)  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.

             (4)  A lease for space that was originally publicly tendered and that contains a provision for a renewal option may, where the area of the renewed space is less than or the same as the space leased in the original lease, be renewed with the approval of the Treasury Board, or the area of space held under a lease may be reduced with the approval of the Treasury Board,

             (a)  in accordance with the terms of the original lease; or

             (b)  on terms more favourable to the government funded body where, in the opinion of the head of that government funded body those terms do not exceed the fair market value for that leased space.

             (5)  A lease for space that was not originally publicly tendered or that was originally publicly tendered without a provision for a renewal option and a lease for an increase of the area of leased space may be renewed or entered into with the approval of the Lieutenant-Governor in Council

             (a)  in accordance with the original terms of the lease; or

             (b)  on terms more favourable to the government funded body where, in the opinion of the head of the government funded body, those terms do not exceed the fair market value for that leased space.

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

1984 c36 s4; 1994 c46 s3; 1998 c10 s3; 2009 cR-15.01 s123

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Change orders and extensions

        5. (1) A government funded body may 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, extension or the cumulative value of them 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, extension or the cumulative value of them does not exceed the value of $15,000 or 10% of the value of the original contract, whichever is greater; and

             (c)  in the case of a contract of a value equal to or greater than $500,000, a change order, extension or the cumulative value of them 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)  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 under subsection (1), with the prior approval

             (a)  in the case of a department of the government, of the deputy minister and those changes shall be reported to the Treasury Board annually; and

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

             (3)  [Rep. by 1998 c10 s4]

1984 c36 s5; 1994 c46 s4; 1998 c10 s4

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Rep. by 1994 c46 s5

        6. [Rep. by 1994 c46 s5]

1994 c46 s5

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Delegation of approval

        7. (1) A deputy minister of a department of the government may delegate to a senior official in the department, appointed by the deputy minister, power to approve change orders, extensions or increased cost under section 5.

             (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); and

             (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).

             (c)  [Rep. by 1994 c46 s6]

1984 c36 s7; 1994 c46 s6

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Tender not awarded to preferred bidder

        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 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 Chief Operating Officer of the Government Purchasing Agency, who shall send a summary of the successful tender together with a report including the reasons why the tender was so awarded, to the Speaker of the House of Assembly for tabling,

             (a)  if the House of Assembly is then in session, within 30 days after receipt of notification of the awarding of the contract by the government funded body; or

             (b)  if the House of Assembly is not then in session, within 30 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.

             (5)  The Chief Operating Officer of the Government Purchasing Agency may review the grounds on which a government funded body awarded a contract to a person other than a preferred bidder, including past practices of the government funded body in making such an award, and may express his or her opinion to the head of the government funded body with respect to the sufficiency of the grounds for awarding the contract to a person other than a preferred bidder.

2004 cG-6.1 s10

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Where no tender called

        9. Where a tender is not required to be invited because of paragraph 3(2)(a) or (b) or paragraph 4(1)(a) or (b), the government funded body shall, before a public work is to be executed under the direction of the head of a government funded body, or goods or services are to be acquired by a government funded body, or space is to be leased by a government funded body,

             (a)  obtain quotations from at least 3 legitimate dealers, suppliers, contractors or lessors by direct quotation; or

             (b)  establish for the circumstance a fair and reasonable price for the public work, the goods or services or the leased space through direct quotation substantiated by reference to trade catalogues, price lists or in a manner that the government funded body considers advisable.

1994 c46 s8

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Absence of bids

      9.1 (1) Where no bids are received following a public tender call, the head of the government funded body shall issue a 2nd public call for bids unless the delay resulting from inviting tenders a 2nd time would be injurious to the public interest, in which case the head of the government funded body may execute the public work or acquire the goods or services or lease the leased space in accordance with paragraphs 9(a) and (b).

             (2)  Where no bids are received following 2 successive public tender calls, the head of the government funded body may execute the public work or acquire the goods or services or lease the leased space in accordance with paragraphs 9(a) and (b).

1994 c46 s8

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No tender situations to be tabled

      10. (1) 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), (i) or (j), 4(1)(b) or (d) or subsection 4(4) or (5), the head of the government funded body shall inform the Chief Operating Officer of the Government Purchasing Agency of the public work or goods or services or lease and the Chief Operating Officer shall send 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, to the Speaker of the House of Assembly for tabling,

             (a)  if the House of Assembly is then in session, within 30 days after receipt of notification of the awarding of the contract by the government funded body; or

             (b)  if the House of Assembly is not then in session, within 30 days from the opening of the next session.

             (2)  The Chief Operating Officer of the Government Purchasing Agency may review the grounds on which a government funded body determined that a tender was not required to be invited, including past practices of the government funded body in making such a determination, and may express his or her opinion to the head of the government funded body with respect to the sufficiency of the grounds for not inviting a tender.

2004 cG-6.1 s10

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Information respecting a tender

   10.1 (1) Where a tender is invited by a government funded body, the government funded body shall, at the time the tender is invited, provide the Chief Operating Officer of the Government Purchasing Agency

             (a)  with information respecting the tender invitation in the form required by the chief operating officer; and

             (b)  within 30 days of awarding a tender, with information respecting the award of the tender including the name of the successful bidder and the amount of the contract.

             (2)  The Chief Operating Officer of the Government Purchasing Agency shall make available, upon request, the information submitted under subsection (1).

2004 cG-6.1 s10

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Confirmation of compliance

   10.2 The head of a government funded body shall, with respect to an award of a contract arising out of an invitation to tender, provide a confirmation to the Chief Operating Officer of the Government Purchasing Agency, in the form he or she may require, that the contract was awarded in accordance with this Act.

2004 cG-6.1 s10

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Tenders public

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

1984 c36 s11; 1994 c46 s10

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Regulations

      12. (1) The Lieutenant-Governor in Council may make regulations

             (a)  defining terms used in this Act;

             (b)  for naming a government funded body under paragraph 3(2)(g);

             (c)  for the purpose of paragraph 3(2)(j);

             (d)  respecting the terms under which a deputy minister may delegate his or her power under section 7;

             (e)  respecting the establishment and use of a registry of products manufactured in the province; and

              (f)  generally to give effect to the purpose of this Act.

             (2)  The Lieutenant-Governor in Council may by order add a body to the Schedule to this Act for the purpose of subparagraph 2(b)(viii).

1998 c10 s6; 2001 c42 s35

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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 and Labrador

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 Housing Corporation

Newfoundland and Labrador Liquor Corporation

Newfoundland Medical Care Commission

Newfoundland and Labrador Municipal Financing Corporation

Northern Hospitals Buildings Corporation Limited

Pepperrell Hospital Reconstruction Corporation Limited

Public Libraries Board

St. John's Home Care Program

St. John's Infirmary Building Corporation Limited

Workers' Compensation Commission

The college established under the College Act, 1996

1984 c36 Sch; 1988 c40 s8(1); 1991 c38 s4; 1991 c40 s35; 145/91; 1994 c11 s7; 1995 c37 s23; 1996 cC-22.1 s30; 2001 cN-3.1 s2