101. Any contract involving an expenditure equal to or above the threshold ordered by the Minister, from among the contracts referred to in the first paragraph of section 99, may be awarded only after a call for tenders by way of an advertisement published in a newspaper circulated in the territory of the Community.
A public call for tenders for a construction, supply or services contract must (1) be published by means of the electronic tendering system approved by the Government for the purposes of the Act respecting contracting by public bodies (chapter C-65.1) and in a newspaper circulated in the territory of the Community or, if there is no such newspaper, in a publication specialized in the field and sold mainly in Québec; and
(2) provide that any document to which it refers and any additional related document may only be obtained by means of that system.
For the purposes of the second paragraph,
(1) “construction contract” means a contract regarding the construction, reconstruction, demolition, repair or renovation of a building, structure or other civil engineering work, including site preparation, excavation, drilling, seismic investigation, the supply of products and materials, equipment and machinery if these are included in and incidental to a construction contract, as well as the installation and repair of fixtures of a building, structure or other civil engineering work;
(2) (subparagraph repealed);
(3) “services contract” means a contract for supplying services that may include the supply of parts or materials required to supply the services.
The time limit for receipt of tenders must be in accordance with the time ordered by the Minister. If the tender documents are amended in such a way as to affect the prices, the amendment must be sent, at least seven days before the expiry of the time limit for the receipt of tenders, to the persons who requested a copy of the call for tenders, a document it refers to or a related document. If the seven-day period cannot be complied with, the time limit for the receipt of tenders shall be extended by the number of days needed to ensure compliance with that minimum period.
A public call for tenders may provide that the Community reserves the right to reject any tender from a contractor or supplier having received an unsatisfactory performance assessment in the two years before the tender opening date.
For the purposes of the fifth paragraph, the Community may only use an unsatisfactory performance assessment if the assessment meets the following conditions:
(1) it relates to the carrying out of a contract awarded by the Community;
(2) it was carried out by the person designated for that purpose by the council;
(3) it is included in a report a copy of which was sent to the contractor or supplier not later than the 60th day after the termination of the contract concerned;
(4) the contractor or supplier was given at least 30 days after receiving a copy of the report referred to in subparagraph 3 to submit comments in writing to the Community; and
(5) after any comments submitted under subparagraph 4 have been examined, it is a final assessment, having been approved by the council of the Community not later than the 60th day after receipt of those comments or, if no comments were submitted, after the expiry of the period specified in subparagraph 4 for submitting comments. A certified copy of the approved assessment must be sent to the contractor or supplier.
A public call for tenders for a contract referred to in the second paragraph may also provide that tenders will be considered only if
(1) they are submitted by contractors or suppliers that have an establishment in Canada, in the case of supply contracts or contracts for the supply of services involving an expenditure below the ceiling ordered by the Minister;
(2) they are submitted by contractors or suppliers that have an establishment in Canada for a contract involving an expenditure equal to or above the ceiling ordered by the Minister and whose object is the supply of services other than
(a) courier or mail services, including email;
(b) fax services;
(c) real estate services;
(d) computer services, including consultation services for the purchase or installation of computer software or hardware, and data processing services;
(e) maintenance or repair services for office equipment;
(f) management consulting services, except arbitration, mediation and conciliation services with regard to human resources management;
(g) architectural or engineering services, except those related to transportation infrastructure construction;
(h) architectural landscaping services;
(i) land use and planning services;
(j) test, analysis or inspection services for quality control;
(k) exterior and interior building cleaning services; and
(l) machinery or equipment repair services;
(3) in the case of supply contracts or contracts for the supply of services listed in subparagraph 2 involving an expenditure equal to or above the ceiling ordered by the Minister, they are submitted by contractors or suppliers that have an establishment in Canada or in any of the territories covered by the Comprehensive Economic and Trade Agreement between Canada and the European Union and its Member States and are mentioned in the electronic tendering system approved by the Government; or
(4) in the case of construction contracts, they are submitted by contractors or suppliers that have an establishment in Canada or only in a part of Canada, or in any of the territories covered by the Comprehensive Economic and Trade Agreement between Canada and the European Union and its Member States, and are mentioned in the electronic tendering system approved by the Government according to whether they involve an expenditure below or above the ceiling ordered by the Minister.
Despite section 9 of the Act respecting Access to documents held by public bodies and the Protection of personal information (chapter A-2.1) and until the opening of tenders, no member of the council or employee of the Community may disclose information that may be used to determine the number of persons or the identity of the persons who have submitted a tender or requested a copy of the call for tenders, of a document to which it refers or of an additional related document. The prohibition with respect to disclosing information also applies to the operator of the electronic tendering system described in the second paragraph and the operator’s employees, except with respect to information that may be used to determine the identity of a person who requested a copy of any of those documents, provided that person expressly authorized the operator to disclose such information. Tenders may not be called for nor may the contracts resulting therefrom be awarded except on a fixed price or unit price basis.
All tenders must be opened publicly in the presence of at least two witnesses, on the date and at the time and place mentioned in the call for tenders. All tenderers may be present at the opening of the tenders. The names of the tenderers and their respective prices must be declared aloud on the opening of the tenders.
Subject to sections 102 and 102.1, the Community may not, without the prior authorization of the Minister, award the contract to any person other than the person who submitted the lowest tender within the prescribed time. However, where it is necessary, to comply with the conditions for a government grant, that the contract be awarded to a person other than the person who submitted the lowest tender within the prescribed time, the Community may, without the authorization of the Minister, award the contract to the person whose tender is the lowest among the tenders submitted within the prescribed time that fulfil the conditions for the grant.
2000, c. 56, Sch. VI, s. 101; 2001, c. 68, s. 209; 2002, c. 37, s. 136; 2009, c. 26, s. 37; 2010, c. 18, s. 69; 2010, c. 1, s. 36; 2010, c. 18, s. 69; 2012, c. 30, s. 15; 2016, c. 17, s. 35; 2018, c. 8, s. 14212.