S-4.2, r. 16 - Regulation respecting the leasing of immovables by public institutions and agencies

Updated to 1 September 2012

This document has official status.

chapter S-4.2, r. 16

Regulation respecting the leasing of immovables by public institutions and agencies

Act respecting health services and social services

(chapter S-4.2, ss. 485 and 486).

DIVISION I SCOPE AND INTERPRETATION

1. This Regulation applies to public institutions and to agencies covered by the Act respecting health services and social services (chapter S-4.2) and contains the standards, conditions and procedure to be observed by those legal persons to enter into an immovable leasing contract whereby they acquire a right of enjoyment in respect of an immovable or a part of an immovable.

M.O. 93-03, s. 1.

2. In this Regulation, unless otherwise indicated by the context,

(1)  “public call for tenders” means a notice published in a newspaper, inviting every immovable owner to submit a leasing tender;

(2)  “invitation to tender” means a notice sent simultaneously to at least 3 immovable owners, inviting them to submit leasing tenders;

(3)  “Guide de gestion” means the document entitled “Guide sur la gestion des locations d’immeubles dans le secteur de la santé et des services sociaux” forming part of the Répertoire des normes et pratiques de gestion published by the Ministère de la Santé et des Services sociaux, providing model contract forms, standards for alloting space and other standard documents for the application of this Regulation;

(4)  “public or parapublic immovable” means an immovable owned in whole or in part by the Gouvernement du Québec or a body thereof, the Société immobilière du Québec, a non-profit body in the health and social services sector, including the bodies mentioned in section 1, a non-profit body in the education, higher education and science sector, a municipality, a metropolitan community, a regional county municipality, a religious corporation or a fabrique;

(5)  “updated rent” means the sum of the updated annual cost of basic rent, of the updated annual cost of layout work and of the updated annual cost of operating expenses, excluding taxes;

(6)  “applicant” means a legal person covered by section 1;

(7)  “main area” means the sum of the work areas, specific areas, support and traffic areas, calculated following the standards for alloting space provided in the Guide de gestion.

M.O. 93-03, s. 2.

DIVISION II APPROVAL OF LEASING PROJECTS

3. The approval of the Minister is required for any leasing of an immovable by an agency.

In addition, before authorizing a public institution to carry out its leasing project under section 263 of the Act, the agency concerned shall obtain the approval of the Minister

(1)  where the term of the lease sought exceeds 10 years;

(2)  where, owing to exceptional circumstances or special needs of the public institution, the model contract forms, standards for alloting space or other standard documents in the Guide de gestion cannot be used to enter into the immovable leasing contract, except where the contract is a lease between 2 institutions, a lease between an institution and the Société immobilière du Québec, a lease between an institution and a public or parapublic body or a residential lease;

(3)  where the public institution already occupies premises in a public or parapublic immovable and proposes to relocate elsewhere than in a public or parapublic immovable; or

(4)  where the leasing project results from the development of the institution’s activities and involves an increase in the main area that requires extending the premises already leased, the leasing of additional premises or the leasing of larger premises in another immovable.

M.O. 93-03, s. 3.

4. To obtain the authorization required under section 263 of the Act, the public institution shall submit to its agency a leasing project clearly stating all the reasons justifying the project and clearly indicating all the details of the functional and technical plan proposed. The foregoing also applies to any leasing project that must be submitted to the Minister for approval.

The project submitted shall, in particular,

(1)  specify whether it is a renewal of a lease, a leasing of additional premises or a change of location;

(2)  indicate the investigations carried out into the availability of a public or parapublic immovable that might meet the applicant’s needs;

(3)  provide the boundaries of the proposed search location, which must comply with the zoning by-laws in force and be sufficiently spread out to create a healthy competition;

(4)  provide a detailed description of the specific requirements of the proposed layout;

(5)  provide the calculation of the main area of the proposed leasing and indicate the desired term of the lease;

(6)  estimate the annual cost of the rent to be paid and indicate the method of financing and, where applicable, the cost and financing method of any additional or operating expenses involved in the project; and

(7)  provide the agreements in principle already received from the agency or the Minister, as the case may be, concerning the programming of the applicant’s activities underlying the leasing project.

M.O. 93-03, s. 4.

5. The Minister or an agency may approve the project submitted for approval with or without amendment.

Such approval shall be given in writing and shall always specify the main area, the search location, the layout and the estimate of the annual rent cost that have been approved.

M.O. 93-03, s. 5.

6. Except for the investigations carried out into the availability of public or parapublic immovables, the applicant may not undertake any action or incur any expense before receiving from the agency or the Minister, as the case may be, confirmation in writing that its leasing project has been duly approved.

The leasing project shall be carried out in accordance with all the provisions of the approval obtained. Where that is impossible, the applicant shall suspend any action undertaken to carry out the leasing project and shall submit an amended project for the purpose of obtaining a new approval.

M.O. 93-03, s. 6.

DIVISION III PROCEDURES AND CONDITIONS

7. Except in the cases mentioned in section 8, an applicant shall in every case solicit leasing tenders by a call for tenders.

For that purpose, the applicant may use an invitation to tender where the applicant is seeking residential premises intended to be occupied by an intermediate resource, but shall use a public call for tenders in every other situation.

M.O. 93-03, s. 7.

8. An applicant may not use a call for tenders

(1)  where the applicant wishes to lease premises in a public or parapublic immovable;

(2)  where, near the expiry of a lease contract with a fixed term, the applicant wishes to continue occupying the premises and to negotiate the terms and conditions of a new contract, provided that the applicant uses the model contract form prescribed for the type of lease concerned, if any;

(3)  to lease an additional main area in an immovable where a part thereof is already leased by the applicant;

(4)  to lease parking space;

(5)  where the main purpose of the proposed contract is to lease the services of an intermediate resource, even though the contract involves the leasing of immovables; or

(6)  in a case of emergency where the safety of persons or property is at stake and where any delay caused by calling for tenders would be detrimental to the applicant, provided that the term of the leasing contract does not exceed 1 year.

M.O. 93-03, s. 8.

9. A public call for tenders shall be published in at least 1 daily newspaper circulated in the region where the immovable sought is to be located.

M.O. 93-03, s. 9.

10. A call for tenders shall contain

(1)  the name of the applicant;

(2)  the search area, namely the territorial boundaries within which the premises required must be located;

(3)  a statement that the tenders submitted shall comply with the zoning by-laws in force on the opening date of the tenders;

(4)  the main area required and a summary of the technical specifications of the premises sought;

(5)  the planned date of occupancy and the desired term of the lease;

(6)  the place where the documents and particulars necessary to prepare a tender may be examined and obtained;

(7)  the conditions for obtaining the documents necessary to prepare a tender and the place and time of any information meeting planned to explain the leasing project;

(8)  the place and time limit fixed for receiving and opening tenders;

(9)  a statement that the tenders submitted shall be valid, from the opening date of the tenders, for the minimum period indicated by the applicant;

(10)  particulars on any security required by the applicant, in the case of a public call for tenders; and

(11)  a statement that the applicant does not undertake to accept the lowest or any other tender submitted.

M.O. 93-03, s. 10.

11. The following documents shall be given to the persons interested in submitting a tender following the publication of a public call for tenders:

(1)  a list of the documents provided;

(2)  a copy of the notice of tender;

(3)  instructions to tenderers;

(4)  the tender form;

(5)  the information form concerning the tenderer;

(6)  the lease form to be used;

(7)  the measurement rules to be used;

(8)  the minimum requirements for basic and layout works and the requirements for the specific needs, where applicable;

(9)  safety and surveillance specifications;

(10)  maintenance specifications, where applicable;

(11)  model forms for signature authorization;

(12)  a preliminary sketch of the desired layout;

(13)  any other document relating to the tender, particularly other technical specifications required by the applicant; and

(14)  a return envelope.

The documents listed in subparagraphs 1, 3, 4, 5, 6, 8 and 14 of the first paragraph shall be given to persons interested in submitting a tender following the sending of a notice of invitation to tender.

M.O. 93-03, s. 11.

12. Instructions to tenderers shall indicate the manner of completing the tender form and the procedure to be observed by the tenderer.

In addition, the instructions shall give notice of all provisions in Schedule I to this Regulation, which are essential conditions for the admissibility of a tender on the opening date of tenders and for its subsequent conformity for the purposes of awarding the contract.

M.O. 93-03, s. 12.

13. The time limit for receiving tenders shall be at least 21 days for a public call for tenders and at least 7 days for an invitation to tender.

The time limit shall be calculated from the date of the first publication, in the case of a public call for tenders, and from the date of sending, in the case of an invitation to tender. Notwithstanding the foregoing, where an information meeting is planned, the time limit shall be calculated from the date on which that information meeting is held.

M.O. 93-03, s. 13.

14. Addenda to the leasing project shall be sent by the applicant to the persons to whom tender documents have been given, at least 5 business days before the deadline for opening tenders. Where that 5-day period cannot be respected, the date for receiving tenders shall be postponed in order to ensure that it is respected.

An addendum shall be sent by registered or certified mail or by any other means providing proof of the sending and receiving.

M.O. 93-03, s. 14.

15. Every tendering process may be cancelled by the applicant before the opening of tenders if the proposed project is abandoned or modified to the extent that it is useless to continue the process already begun.

M.O. 93-03, s. 15.

16. The opening of tenders shall follow immediately the time limit fixed for receiving tenders.

M.O. 93-03, s. 16.

17. All the tenders received for a single call for tenders shall be opened publicly by the applicant’s representative in the presence of 2 witnesses.

M.O. 93-03, s. 17.

18. When opening each tender, the applicant’s representative shall first ensure that the conditions set for its admissibility have been respected in accordance with Division I of Schedule I. Where a condition has not been respected, the applicant shall immediately refuse the tender by stating aloud the irregularity observed. Where the conditions have been respected, the applicant’s representative shall then read aloud the name of the tenderer and the amount of the updated rent in the tender.

When all tenders have been opened, the applicant’s representative shall state the total number of tenders retained for study by the applicant, subject to subsequent verification of their conformity.

The above-mentioned observations shall be recorded in minutes countersigned by the witnesses.

M.O. 93-03, s. 18.

19. In order to study the admissible tenders, the applicant shall

(1)  determine the lowest tender by comparing the updated rent in each tender;

(2)  study the conformity of the lowest tender with the requirements prescribed in Division II of Schedule I to this Regulation;

(3)  refuse the lowest tender if it is found to be non-conformable and state in the record the reasons for refusal and the supporting documents establishing the non-conformity; and

(4)  study the second lowest tender, where the lowest tender is refused, and so forth, until the applicant determines a conformable tender.

M.O. 93-03, s. 19.

20. Where only one tender is found to be conformable, the applicant may negotiate the prices in that tender, if the applicant finds it expedient to do so considering the prevailing conditions in the immovable market.

M.O. 93-03, s. 20.

DIVISION IV ACCEPTANCE OF A TENDER AND ENTRY INTO A CONTRACT

21. The applicant may only retain the lowest conformable tender unless, for serious reasons stated in the resolution of its board of directors, the applicant decides to retain another conformable tender.

M.O. 93-03, s. 21.

22. A public institution may not award and sign a contract before obtaining written approval to that effect from its agency.

In addition, where the tender retained by the institution is not the lowest conformable tender, the agency shall, before giving its approval, obtain the consent of the Minister.

M.O. 93-03, s. 22.

23. An agency may not award and sign a contract before obtaining written approval to that effect from the Minister.

M.O. 93-03, s. 23.

DIVISION V MISCELLANEOUS

24. The Minister may cancel any call for tenders where the Minister ascertains a failure to comply with this Regulation.

The tendering process shall then be undertaken again under the supervision of the agency if the applicant is a public institution and under the supervision of the department if the applicant is an agency.

No leasing contract resulting from that new call for tenders may be awarded and signed without the authorization of the Minister.

M.O. 93-03, s. 24.

25. (Obsolete).

M.O. 93-03, s. 25.

26. (Omitted).

M.O. 93-03, s. 26.

27. (Omitted).

M.O. 93-03, s. 27.

SCHEDULE I

(ss. 12, 18 and 19)

PROVISIONS THAT SHALL BE MENTIONED IN INSTRUCTIONS TO TENDERERS

SECTION I

ESSENTIAL CONDITIONS FOR THE ADMISSIBILITY OF A TENDER

1. The tenderer shall submit a tender on the tender form provided by the applicant. The form shall be completed clearly and accurately and be duly signed in the places prescribed for that purpose by the person or persons authorized to sign.

2. The tenderer shall submit the tender and all documents accompanying it in the envelope provided by the applicant, duly sealed. That envelope shall contain

(1) the tender form;

(2) the preliminary sketches or a plan of the premises describing the proposed layout and the parking areas;

(3) the information form concerning the tenderer, duly completed;

(4) the authorization of signature required by section 3 of this Division;

(5) a security bond, certified cheque or letter of guarantee provided by a bank, where security is required by the applicant; and

(6) any other document required by the applicant, with an express mention that failure to provide such document will entail the inadmissibility of the tender.

3. Unless the tenderer is a self-employed natural person who personally signs the documents included in a tender, authorization to sign the documents shall be declared, as the case may be,

(1) in a certified copy of a resolution where the tenderer is a company;

(2) in a power of attorney duly signed by the tenderer where the signatory is a natural person other than the tenderer; or

(3) in a power of attorney duly signed by all partners where the tenderer is a partnership and the documents are not signed by all partners.

4. Documents shall be drawn up in the official language of Québec.

5. The annual costs of the basic rent, layout work, operating expenses excluding taxes, and an estimate of the taxes to be paid shall be indicated in the tender form.

6. Any deletion or correction to amounts in a tender shall be initialed by the person or persons who signed the tender. Any amendment or deletion made in the text of the tender form by the tenderer automatically entails the refusal of the tender.

7. The applicant shall not accept any tender after the time limit fixed for the call for tenders or, where the time limit for receiving tenders is postponed pursuant to section 14 of this Regulation, after the time limit specified in the addendum sent to tenderers.

8. Any other condition respecting the form of a tender indicated as essential in instructions to tenderers and specifically stating that failure to comply therewith entails the inadmissibility of the tender, shall be satisfied by the tenderer.

SECTION II

ESSENTIAL CONDITIONS FOR TENDER CONFORMITY

9. A tender shall not be subject to conditions or restrictions; such conditions or restrictions may not be considered as errors or omissions.

10. Subject to the provisions respecting admissibility, errors or omissions in the documents of a tenderer do not entail refusal of the tender, provided that the tenderer corrects them to the satisfaction of the applicant within 10 days following the opening of tenders and that such corrections do not entail any change in the updated costs included in the tender submitted.

11. A tender becomes void upon the expiry of the period of validity indicated in the notice of tender, unless the parties agree in writing to extend that period. That extension may not exceed 120 days.

12. The tender submitted shall comply with all the conditions stated in the documents given to tenderers.

M.O. 93-03, Sch. I.

REFERENCES

M.O. 93-03, 1993 G.O. 2, 5228

S.Q. 2005, c. 32, s. 309

S.Q. 2011, c. 16, s. 244