C-65.1, r. 3 - Regulation respecting government concession contracts

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chapter C-65.1, r. 3
Regulation respecting government concession contracts
GOVERNMENT CONCESSION CONTRACTS
Act respecting contracting by public bodies
(chapter C-65.1, s. 23).
C-65.1
September 1 2012
DIVISION I
GENERAL PROVISIONS
1. This Regulation is deemed to be made under section 23 of the Act respecting contracting by public bodies (chapter C-65.1).
R.R.Q., 1981, c. A-6, r. 6, s. 1.
2. Unless otherwise stipulated in an Act or regulation, this Regulation shall apply to the departments and bodies whose budget is voted by the National Assembly.
R.R.Q., 1981, c. A-6, r. 6, s. 2.
3. In this Regulation, unless the context indicates otherwise,
(a)  “calls for tenders in newspapers” means a notice published in at least 1 daily newspaper inviting potential agents to submit tenders for a government concession;
(b)  “invitations of tenders” means a notice personally addressed to potential agents inviting them to submit tenders for a government concession;
(c)  “turnover” means the anticipated gross revenue of a concession after taxes, collected by the agent for the Gouvernement du Québec;
(d)  “agent” means a natural or legal person who has signed a concession contract with the owner;
(e)  “concession contract” means a contract made by the Government or in its name respecting the carrying on by a natural or legal person of an activity of a commercial nature in the place and stead of the Government and for which royalties are paid to the Government, with the exclusion of the sale of permits, licences, securities or bonds of the province and lottery tickets;
(f)  “principal establisment” means the principal establishment from which the business is directed and where the managing staff and equipment are ordinarily located;
(g)  “owner” means the department or body signatory to the contract with the agent;
(h)  “royalty” means the amount to be paid by the agent under a concession contract.
R.R.Q., 1981, c. A-6, r. 6, s. 3.
4. A concession contract shall not exceed 5 years.
R.R.Q., 1981, c. A-6, r. 6, s. 4.
DIVISION II
AUTHORIZATION REQUIRED
5. The awarding of a concession contract shall be authorized in advance by the Conseil du trésor where:
(a)  the estimated annual turnover of the concession is over $10,000;
(b)  the estimated annual royalties of the concession are over $1,000;
(c)  the estimated annual turnover of the concession is over $1,000,000 and at least 2 tenders judged to be in conformity have been obtained; or
(d)  the contract is awarded to a supplier other than the highest tenderer in conformity.
R.R.Q., 1981, c. A-6, r. 6, s. 5; O.C. 1566-94, s. 1.
DIVISION III
TENDERS
6. No concession contract may be entered into unless tenders have been called for, except where only one agent is available in which case the authorization of the Conseil du trésor is required.
R.R.Q., 1981, c. A-6, r. 6, s. 6.
7. Where, pursuant to this Regulation, tenders are required, they must be called for in newspapers or by invitation of tenders.
The procedure for invitation of tenders may be used where the estimated annual turnover of the concession is under $10,000 or where the estimated annual royalties are under $1,000.
In all other cases, the procedure for calls for tenders in newspapers must be used.
R.R.Q., 1981, c. A-6, r. 6, s. 7.
DIVISION IV
PROCEDURES FOR CALLS FOR TENDERS IN NEWSPAPERS
8. Calls for tenders in newspapers are published in at least 1 daily newspaper.
R.R.Q., 1981, c. A-6, r. 6, s. 8.
9. All calls for tenders in newspapers must include the following provisions and information:
(a)  a brief description of the concession;
(b)  the location of the concession;
(c)  the place where the documents and information needed to prepare the tender may be obtained;
(d)  the prerequisites for obtaining the documents necessary to prepare the tender;
(e)  a notice to the effect that only tenders from natural or legal persons having their principal establishment in Québec shall be considered for the issuance of the contract;
(f)  that the department or body does not bind itself to accept either the highest or any other tender;
(g)  that the tender shall be valid for a stipulated time;
(h)  that the tender, to be considered, must be sent duly completed to the place indicated and before the time stipulated.
R.R.Q., 1981, c. A-6, r. 6, s. 9.
10. The instructions given to tenderers must include a notice to the effect that:
(a)  the tenderer must provide with his tender a guarantee where the estimated annual turnover of the concession is more than $50,000, which guarantee may:
i.  be a lump sum equal to or more than 5% of the probable turnover if the guarantee is issued by a company authorized to become surety under the Insurers Act (chapter A-32.1); or
ii.  be a lump sum equal to or more than 21/2% of the probable turnover, up to an amount of $100,000, if the guarantee is in the form of a certified cheque made to the order of the Minister of Finance;
(b)  the tenderer whose tender has been accepted must, before the signing of the concession contract of which the estimated annual turnover is greater than $50,000, provide a guarantee of execution equivalent to the amount of the tender guarantee required in paragraph a;
(c)  the tenderer, in the event of failing to sign a contract in conformity with his tender or to provide the guarantee of execution required within 15 days of the date of acceptance, shall be required to pay to the owner a sum of money representing the difference between the amount of his tender and that of the subsequent tender accepted by the owner, which sum being, however, limited to the amount of the tender guarantee fixed in the calls for tenders where applicable.
R.R.Q., 1981, c. A-6, r. 6, s. 10.
11. The documents relating to calls for tenders in newspapers must be given immediately to every natural or legal person whose principal establishment is in Québec who makes the request for documents in his own name and who fulfills the conditions for obtaining such documents prescribed in the calls for tenders.
R.R.Q., 1981, c. A-6, r. 6, s. 11.
12. The time limit for receipt of tenders on a call for tenders in newspapers shall be calculated starting from the first publication made for that call for tenders and may not be less than 8 working days.
R.R.Q., 1981, c. A-6, r. 6, s. 12.
13. If the receipt of tenders cannot take place at the place or on the date and at the time limit stipulated in the notice of call for tenders, such receipt shall take place in another place or at another time, upon due notice given before the time fixed for the receipt of tenders to the persons to whom documents relating to the call for tenders have been forwarded.
R.R.Q., 1981, c. A-6, r. 6, s. 13.
14. Except in a case of superior force, the opening of tenders must immediately follow the time limit set for the receipt of tenders. In a case of superior force, the opening of tenders shall be done at a later date, after notice has been given to the persons to whom documents relating to the call for tenders have been forwarded.
R.R.Q., 1981, c. A-6, r. 6, s. 14.
15. Any tenders which is not completed in conformity with the conditions of the call for tenders and the instructions to tenderers shall not be considered for the issuance of the contract.
R.R.Q., 1981, c. A-6, r. 6, s. 15.
16. All tenders received for the same contract must be opened publicly by the owner’s representative in the presence of at least 2 witnesses.
R.R.Q., 1981, c. A-6, r. 6, s. 16.
17. At the opening of public tenders, the owner’s representative shall verify and read aloud the name of each tenderer and the amount of his tender. Following such reading, he shall give the names of 2 witnesses and, subject to subsequent verifications as to the conformity of the tenders received, the name of the highest tenderer and the amount of his tender. This information must then be recorded.
R.R.Q., 1981, c. A-6, r. 6, s. 17.
REFERENCES
R.R.Q., 1981, c. A-6, r. 6
O.C. 1566-94, 1994 G.O. 2, 4378
S.Q. 2018, c. 23, s. 811