C-65.1, r. 2 - Regulation respecting certain supply contracts of public bodies

À jour au 15 septembre 2013

Ce document a valeur officielle.

chapter C-65.1, r. 2

Regulation respecting supply contracts of public bodies

Act respecting contracting by public bodies

(chapter C-65.1, a. 23).

CHAPTER I SCOPE

1. This Regulation applies to supply contracts referred to in subparagraph 1 of the first paragraph of section 3 of the Act respecting contracting by public bodies (chapter C-65.1).

O.C. 531-2008, s. 1.

2. For the purposes of this Regulation, the electronic tendering system is the system approved by the Government under section 11 of the Act.

O.C. 531-2008, s. 2.

CHAPTER II PUBLIC CALL FOR TENDERS

DIVISION I GENERAL

3. A public call for tenders must be made in accordance with the provisions of this Chapter.

If a public body makes a public call for tenders to award a contract involving an expenditure below the public tender threshold referred to in subparagraph 1 of the first paragraph of section 10 of the Act, the tender closing date set out in subparagraph 6 of the second paragraph of section 4, the requirement as to the place of the establishment set out in subparagraph 2 of the first paragraph of section 6 and the time for sending an addendum set out in the second paragraph of section 9 may differ.

In the case of a delivery order contract or a contract awarded following quality evaluation, the public call for tenders must comply with the special provisions of Chapter III.

O.C. 531-2008, s. 3.

DIVISION II TENDER DOCUMENTS

4. Every public call for tenders is made by publishing a notice on the electronic tendering system.

The notice forms part of the tender documents and must specify and contain

(1)  the name of the public body;

(2)  a brief description of the procurement requirements and the place of delivery;

(2.1)  if applicable, a brief description of the options;

(3)  the nature and amount of any required tender security;

(4)  whether or not an intergovernmental agreement within the meaning of section 2 of the Act applies;

(5)  the place where information may be obtained;

(5.1)  a mention that the tender documents may only be obtained through the electronic tendering system;

(6)  the place as well as the closing and opening dates and times, the closing date being not less than 15 days after the date on which the notice is published; and

(7)  the fact that the public body is not bound to accept any tender.

For the purposes of this Regulation, “option” means an option to renew or an option to acquire additional goods identical to those initially acquired, at the same price and intended to fulfil the procurement requirements referred to in subparagraph 2 of the second paragraph.

O.C. 531-2008, s. 4; O.C. 679-2011, s. 1; O.C. 432-2013, s. 1.

5. In its tender documents, a public body must provide

(1)  a description of the procurement requirements and terms of delivery;

(1.1)  if applicable, the description of the options;

(2)  in the case of a joint call for tenders within the meaning of section 15 of the Act, the identity of every public body and legal person established in the public interest that are parties to the joint call for tenders or that have expressed in writing their intent to be parties to it and the identification of their procurement requirements;

(3)  the eligibility requirements of suppliers and the compliance requirements for tenders;

(4)  a list of the documents or other items required from suppliers;

(5)  the tender opening procedure;

(6)  the contract award rule, including any calculation to be applied before awarding the contract; and

(7)  any other particular required under this Regulation.

In the case referred to in subparagraph 2 of the first paragraph, every party to a joint call for tenders must deal with the selected supplier, on the conditions specified in the tender documents.

O.C. 531-2008, s. 5; O.C. 432-2013, s. 2.

6. In order to submit a tender, a supplier must meet the following eligibility requirements:

(1)  have all the necessary qualifications, authorizations, permits, licences, registrations, certificates, accreditations and attestations;

(2)  have in Québec or in a territory covered by an applicable intergovernmental agreement an establishment where activities are carried on on a permanent basis, clearly identified under the supplier’s name and accessible during regular business hours; and

(3)  meet any other eligibility requirement specified in the tender documents.

Despite subparagraph 2 of the first paragraph, if competition is insufficient, the public body may make eligible any supplier that has an establishment in a territory not covered by an applicable intergovernmental agreement, provided that the public body so specifies in the tender documents.

A supplier who fails to comply with any of those requirements is ineligible.

O.C. 531-2008, s. 6.

7. Compliance requirements must specify the cases that will entail automatic rejection of a tender, namely

(1)  the place or the closing date or time has not been complied with;

(2)  a required document is missing;

(3)  the required signature of an authorized person is missing;

(4)  an erasure of or correction to the tendered price is not initialled;

(5)  the tender is conditional or restrictive; or

(6)  any other compliance requirement stated in the tender documents as entailing automatic rejection of a tender has not been complied with.

Compliance requirements must also specify that the filing by a supplier of several tenders for the same call for tenders entails automatic rejection of all the supplier’s tenders.

O.C. 531-2008, s. 7; O.C. 432-2013, s. 3.

7.1. Compliance requirements must also specify that a tender with an unusually low price is non-compliant and must be rejected, after authorization from the chief executive officer of the public body pursuant to Division IV.1 of this Chapter.

O.C. 432-2013, s. 4.

8. Provided that it is specified in the tender documents, a public body may refuse to consider any supplier who, in the 2 years preceding the tender opening date, has been given an unsatisfactory performance report by the public body, failed to follow up on a tender or contract or had a contract cancelled because of failure to comply with the contract conditions.

O.C. 531-2008, s. 8.

9. A public body may amend the tender documents by means of an addendum sent to the suppliers concerned.

If the amendment is likely to affect the prices, the addendum must be sent at least 7 days before the tender closing time; if that 7-day period cannot be complied with, the closing time must be extended by the number of days needed to ensure compliance with the minimum period.

O.C. 531-2008, s. 9; O.C. 679-2011, s. 2.

9.1. Tender documents and, if applicable, any addendum amending them may only be obtained through the electronic tendering system.

O.C. 679-2011, s. 3.

DIVISION III CALLING FOR AND OPENING OF TENDERS

10. A public body solicits solely a price in order to award a supply contract.

O.C. 531-2008, s. 10.

11. Tenders are opened by the public body at a public opening in the presence of a witness at the designated place and on the date and time fixed in the tender documents, unless the tenders are in the form of a price list whose scope or layout does not make it possible to specify a total price.

At the public opening, the names of the suppliers and their respective total prices are disclosed, subject to subsequent verifications.

Within 4 business days, the public body must make the results of the public opening of tenders available on the electronic tendering system.

O.C. 531-2008, s. 11.

DIVISION IV EVALUATION OF TENDERS AND CONTRACT AWARDING

12. The public body evaluates the tenders received, ensuring that the suppliers are eligible and their tenders are compliant.

If the public body rejects a tender because the supplier is ineligible or the tender is non-compliant, it must so inform the supplier and give the reason for the rejection no later than 15 days after awarding the contract.

O.C. 531-2008, s. 12.

13. A public body awards the contract to the supplier who submits the lowest price.

A public body may, in determining the lowest price, take into account the impact costs related to the acquisition and adjust the submitted prices. The price adjustment must be based on elements that are quantifiable and clearly identified in the tender documents.

O.C. 531-2008, s. 13.

14. If several suppliers obtain identical results following a call for tenders, the contract is awarded by a drawing of lots.

O.C. 531-2008, s. 14.

15. The public body awards the contract on the basis of the procurement requirements described and the rules established in the tender documents and according to the price submitted.

The public body may, however, negotiate the price submitted and the price stipulated in the contract may be less than the price submitted if

(1)  only 1 supplier submitted a compliant tender;

(2)  the supplier agreed to a new price; and

(3)  it is the only change made to the conditions set out in the tender documents or to the tender in the course of the negotiation.

O.C. 531-2008, s. 15.

15.1. The contract is awarded when the successful tenderer is chosen by the public body or, as the case may be, when the drawing of lots takes place.

O.C. 432-2013, s. 5.

DIVISION IV.1 TENDERS WITH AN UNUSUALLY LOW PRICE

O.C. 432-2013, s. 5.

15.2. The price of a tender is unusually low if an extensive and documented analysis by the committee referred to in section 15.4 shows that the submitted price cannot enable the supplier to carry out the contract on the conditions set in the tender documents without jeopardizing the performance of the contract.

O.C. 432-2013, s. 5.

15.3. Where a public body observes that the price of a tender is unusually low, the public body requests to the supplier that it exposes in writing, within 5 days of receiving such request, the reasons warranting such price.

O.C. 432-2013, s. 5.

15.4. If the supplier fails to submit explanations within the time set in section 15.3 or if, despite the explanations provided, the public body still considers the price to seem unusually low, the public body forwards the tender to a committee set up for that purpose for analysis.

The committee is composed of the contract rules compliance monitor of the public body and at least 3 members designated by the chief executive officer of the public body who are not involved in the awarding process.

The contract rules compliance monitor supervises the committee’s work.

O.C. 432-2013, s. 5.

15.5. In analyzing the tender, the committee takes the following factors into account:

(1)  the gap between the tendered price and the public body’s estimate of the expenditure, which is confirmed by an adequate and rigorous audit;

(2)  the gap between the tendered price and the price tendered by the other suppliers that have submitted a compliant tender;

(3)  the gap between the tendered price and the price paid by the public body, or by another public body, under a similar contract, taking into account the economic context; and

(4)  the representations made by the supplier concerning the existence of particular facts that have an influence on the tendered price, such as

(a)  the method of manufacturing the goods covered by the call for tenders, or the components forming the goods;

(b)  the exceptionally favorable circumstances that would help the supplier in the performance of the contract;

(c)  the innovative character of the tender;

(d)  the working conditions of the supplier’s employees or, if applicable, subcontractors; and

(e)  the government financial assistance received by the supplier.

O.C. 432-2013, s. 5.

15.6. The committee states in a report its conclusions and the reasons in support of the committee’s conclusions.

If the conclusions are that the tendered price is not unusually low, the contract rules compliance monitor sends a copy of the report to the chief executive officer of the public body.

If the conclusions are that the tendered price is unusually low, the contract rules compliance monitor sends a copy of the report to the supplier.

O.C. 432-2013, s. 5.

15.7. The supplier may, within 10 days of receiving the report referred to in section 15.6, send written comments to the contract rules compliance monitor of the public body.

O.C. 432-2013, s. 5.

15.8. Having taken cognizance of the comments, if any, the committee decides whether it upholds the conclusions of its report or not.

If the committee does not uphold the conclusions of its report, the contract rules compliance monitor sends a copy of the updated report to the chief executive officer of the public body.

If the committee upholds the conclusions of its report, the contract rules compliance monitor sends a copy of the updated report, if applicable, to the chief executive officer of the public body, who authorizes the rejection of the tender not later than before the expiry of the period of validity of tenders.

O.C. 432-2013, s. 5.

15.9. The public body informs the Conseil du trésor of the tenders rejected pursuant to this Division.

O.C. 432-2013, s. 5.

CHAPTER III SPECIAL RULES FOR AWARDING CONTRACTS

DIVISION I DELIVERY ORDER CONTRACTS

16. A public body may enter into a delivery order contract with one or more suppliers when the procurement requirements are recurrent and the quantity of goods, the rate or frequency at which they are acquired are uncertain.

O.C. 531-2008, s. 16.

16.1. Despite section 10, a public body may evaluate the quality of a tender in order to award a delivery order contract by applying the provisions of Division II of this Chapter respecting an evaluation based on a minimum level of quality.

O.C. 432-2013, s. 6.

17. The public body must indicate in the tender documents the approximate quantities of goods likely to be acquired or, failing that, the approximate monetary value of the contract and, where applicable, the places of delivery.

O.C. 531-2008, s. 17.

18. If the delivery order contract is entered into with more than one supplier, the orders are directed to the supplier who submitted the lowest price, unless the supplier cannot fill the orders, in which case the other suppliers are solicited according to their respective rank.

Such orders may, however, be awarded to any of the selected suppliers whose submitted price does not exceed the lowest price by more than 10%, so long as the awarding rule is authorized by the chief executive officer of the public body before the notice of a call for tenders is published.

O.C. 531-2008, s. 18.

DIVISION II CONTRACTS AWARDED FOLLOWING QUALITY EVALUATION

19. Despite section 10, a public body may decide to evaluate the quality of a tender; in such a case, it must request a price and a quality demonstration based on predetermined evaluation criteria.

The public body must specify in the tender documents the rules to be used to evaluate the quality of tenders, including the evaluation criteria selected and, for the purposes of Schedule 2, their respective weighting.

The price and the quality demonstration must be presented separately so that the first paragraph of section 24 may apply. In addition to the cases referred to in section 7, the compliance requirements must state that failure to comply with the requirement will entail automatic rejection of a tender.

O.C. 531-2008, s. 19.

20. At the public opening of tenders under section 11, only the names of the suppliers are disclosed and the results of the opening are made available in accordance with the third paragraph of that section.

O.C. 531-2008, s. 20.

21. The public body must evaluate the quality of tenders as provided in Schedule 1 or Schedule 2, as the case may be.

O.C. 531-2008, s. 21.

22. Where an evaluation is based on a minimum level of quality, the public body must apply the evaluation conditions in Schedule 1 and award the contract to the supplier who submitted the lowest price.

O.C. 531-2008, s. 22.

23. Where an evaluation is based on measurement of the level of quality followed by calculation of the price-quality ratio, the public body must apply the evaluation conditions in Schedule 2 and award the contract to the supplier who submitted the lowest adjusted price.

O.C. 531-2008, s. 23.

24. Tenders are to be evaluated by a selection committee set up for that purpose by the public body. The committee must evaluate quality without knowing the price submitted.

Where the evaluation of tenders is for awarding a contract involving an expenditure equal to or above the public tender threshold, the selection committee must be composed of a secretary in charge of coordinating activities and of at least 3 members.

O.C. 531-2008, s. 24.

25. For the purposes of section 15 in respect of a contract awarded following quality evaluation, the condition in subparagraph 1 of the second paragraph of that section is that only one supplier must have submitted an acceptable tender.

O.C. 531-2008, s. 25.

26. The public body must inform each tenderer of the results of the tender quality evaluation within 15 days after awarding the contract.

If Schedule 1 applies, the particulars sent to tenderers are

(1)  confirmation that their tender was accepted or not; and

(2)  the name of and price submitted by the successful tenderer.

If Schedule 2 applies, the particulars sent to tenderers are

(1)  confirmation that their tender was accepted or not;

(2)  their quality score, their adjusted price and their rank according to the adjusted prices, where applicable; and

(3)  the name, quality score and price of the successful tenderer, and the resulting adjusted price.

O.C. 531-2008, s. 26.

CHAPTER IV SPECIAL CONTRACTS

DIVISION I CONTRACT FOR THE ACQUISITION OF SAND, STONE, GRAVEL OR BITUMINOUS COMPOUNDS

27. A contract to acquire sand, stone, gravel or bituminous compounds involving an expenditure below $200,000 may be entered into by mutual agreement.

O.C. 531-2008, s. 27.

DIVISION II CONTRACT RELATING TO RESEARCH AND DEVELOPMENT OR TEACHING

28. A supply contract relating to research and development or teaching activities may be entered into by mutual agreement where, due to technical or scientific reasons, only one supplier is able to carry it out and there is no other alternate solution or substitute goods.

O.C. 531-2008, s. 28.

DIVISION III SUPPLY CONTRACTS FOR ACTIVITIES ON FOREIGN SOIL

29. A supply contract for the activities on foreign soil of a delegation general, a delegation or another form of representation of Québec abroad, established pursuant to section 28 of the Act respecting the Ministère des Relations internationales (chapter M-25.1.1), may be entered into by mutual agreement even if it involves an expenditure equal to or above the public tender threshold provided for in section 10 of the Act. The contract is awarded in a manner consistent with the principles stated in section 2 of the Act.

O.C. 531-2008, s. 29.

DIVISION IV CONTRACT FOR THE ACQUISITION OF SOFTWARE

O.C. 694-2009, s. 1.

29.1. Despite the provisions of Division I of Chapter III, a public body referred to in subparagraphs 1 to 4 of the first paragraph of section 4 of the Act may enter into a delivery order contract by mutual agreement for the acquisition of software for cases other than those referred to in subparagraphs 1 to 4 of the first paragraph of section 13 of the Act.

The delivery order contract may be entered into with public bodies that made a joint call for tenders referred to in section 15 of the Act. In that case, the provisions provided for in section 5 relating to a joint call for tenders, apply with the necessary modifications and considering the obligation provided for in the third paragraph of this section.

To avail itself of a delivery order contract, the public body and, if applicable, the legal person established in the public interest benefiting from the acquisition must have conducted an extensive and documented search showing that only the supplier identified in the contract may meet their requirements.

The authorization of the Conseil du trésor is required where the approximate monetary value of the delivery order contract is equal to or above the public tender threshold. The minister may set the conditions applicable to the contract.

O.C. 694-2009, s. 1; O.C. 432-2013, s. 7.

CHAPTER V CERTIFICATION OF GOODS

30. A public body must certify the goods if it is expedient to ascertain before proceeding with a call for tenders that the goods meet a recognized standard or an established technical specification.

O.C. 531-2008, s. 30.

31. A public body may use a certification process for goods if

(1)  the certification of goods is preceded by a public notice to that effect on the electronic tendering system;

(2)  a list of the certificated goods is published on the electronic tendering system and every supplier is informed of the goods that are entered on the list or the reason for refusal if entry is denied; and

(3)  a public notice of certification is published again at least once a year, even though the public body may certify goods at intervals varying from 1 to 3 years.

O.C. 531-2008, s. 31.

32. Except in the cases described in section 13 of the Act, every contract subsequent to the certification of goods is limited to the certified goods only and, if such a contract involves an expenditure equal to or above the public tender threshold, it must be awarded through a public call for tenders.

O.C. 531-2008, s. 32.

CHAPTER VI CONDITIONS TO BE MET BEFORE ENTERING INTO CONTRACTS

DIVISION I REQUIRED AUTHORIZATION

33. The authorization of the chief executive officer of the public body is required for every contract whose expected term, including any renewal, is greater than 3 years. Despite the foregoing, the chief executive officer of the public body may not authorize a delivery order contract whose expected term, including any renewal, is greater than 5 years.

That authorization is also required before entering into a contract involving an expenditure equal to or above the public tender threshold if

(1)  only one supplier submitted a compliant tender; or

(2)  only one supplier submitted an acceptable tender following a quality evaluation under Division II of Chapter III.

In the case provided for in subparagraph 2 of the second paragraph, the selection committee must not know the price and the chief executive officer of the public body is to determine whether or not the awarding process should be continued.

O.C. 531-2008, s. 33.

DIVISION II AFFIRMATIVE ACTION PROGRAM

34. This Division applies only to public bodies referred to in subparagraph 1 or 2 of the first paragraph of section 4 of the Act.

O.C. 531-2008, s. 34.

35. Where the amount of a supply contract is $100,000 or more, or where the amount of a supply subcontract is $100,000 or more, the contract or subcontract may not be entered into with a Québec supplier or subcontractor whose business employs more than 100 persons unless the supplier or subcontractor has made a commitment to implement an affirmative action program that complies with the Charter of human rights and freedoms (chapter C-12) and holds an attestation to that effect issued by the Chair of the Conseil du trésor.

If such a contract or subcontract is to be entered into with a supplier or subcontractor of another province or territory of Canada in respect of which an employment equity program is applicable, and that supplier or subcontractor employs more than 100 persons, the supplier or subcontractor must provide an attestation to the effect that the supplier or subcontractor has made a commitment to implement an employment equity program complying with the program of its province or territory.

If such a contract or subcontract must be entered into with a supplier or a subcontractor of Québec or of another province or territory of Canada, that is governed by the federal legislation, that employs more than 100 persons and in respect of which a federal employment equity program is applicable, the supplier or subcontractor must provide an attestation to the effect that the supplier or subcontractor has made a commitment to implement an employment equity program complying with the federal program.

O.C. 531-2008, s. 35; O.C. 432-2013, s. 8.

36. The Chair of the Conseil du trésor cancels the attestation issued to a supplier referred to in the first paragraph of section 35 who does not fulfil a commitment to implement an employment equity program.

Any supplier whose attestation referred to in section 35 has been cancelled may not enter into a supply contract with a body referred to in section 34 or a supply subcontract related to such contract as long as a new attestation has not been issued.

O.C. 531-2008, s. 36; O.C. 432-2013, s. 9.

DIVISION III QUALITY ASSURANCE, SUSTAINABLE DEVELOPMENT AND ENVIRONMENT

37. A public body may require a quality assurance system, including an ISO standard, or a specification relating to sustainable development and the environment for the carrying out of a contract. The public body must specify the requirement in the tender documents.

If such a requirement unduly reduces competition, the public body must allow any supplier to submit a tender and grant to a supplier that fulfils the requirement referred to in the first paragraph a preferential margin not exceeding 10%. In the latter case, the price submitted by such a supplier is, for the sole purpose of determining the successful tenderer, reduced by the preferential margin, without any effect on the price for contract awarding purposes.

The percentage of the preferential margin to be applied must be indicated in the tender documents.

O.C. 531-2008, s. 37; O.C. 432-2013, s. 10.

DIVISION IV ATTESTATION FROM REVENU QUÉBEC

O.C. 353-2010, s. 1; O.C. 847-2011, s. 1.

37.1. Every supplier interested in entering into a supply contract with a public body involving an expenditure equal to or greater than $25,000 must hold an attestation from Revenu Québec.

O.C. 353-2010, s. 1; O.C. 847-2011, s. 1.

37.2. The attestation from Revenu Québec is issued to every supplier who, on the date indicated in the attestation, has filed the returns and reports that the supplier had to file under fiscal laws and who has no overdue account payable to the Minister of Revenue, in particular when its recovery has been legally suspended or arrangements have been made with the supplier to ensure payment and the supplier has not defaulted.

O.C. 353-2010, s. 1; O.C. 847-2011, s. 1.

37.3. The attestation must not have been issued more than 90 days before the date and time fixed for receiving tenders, or after that date and time, or, in the case of a contract entered into by mutual agreement, more than 90 days before the contract award date. The fact that the supplier holds an attestation is considered to be an eligibility requirement within the meaning of section 6.

O.C. 847-2011, s. 1.

37.4. A supplier may not submit an attestation from Revenu Québec that contains false or inaccurate information, produce on the supplier’s own behalf the attestation of a third party, or falsely declare that the supplier does not hold the required attestation.

O.C. 847-2011, s. 1.

37.5. No person may help another person, by an act or omission, to contravene section 37.4, or encourage, advise, allow, authorize or order the person to contravene that section.

O.C. 847-2011, s. 1.

37.6. Section 37.1 does not apply to a supplier that does not have in Québec an establishment where activities are carried on on a permanent basis, clearly identified under the supplier’s name and accessible during regular business hours.

It does not apply either where a supply contract must be entered into by reason of an emergency that threatens human safety or property.

O.C. 847-2011, s. 1.

CHAPTER VII INFORMATION TO BE PUBLISHED

DIVISION I CONTRACTS ENTERED INTO FOLLOWING A PUBLIC CALL FOR TENDERS

O.C. 432-2013, s. 11.

38. Following a public call for tenders, the public body publishes in the electronic tendering system, within 15 days of the conclusion of the contract, the initial description of the contract. That description contains at least

(1)  the name of the supplier or, in the case of a delivery order contract involving several suppliers, the name of the suppliers selected;

(2)  the nature of the goods covered by the contract;

(3)  the date of conclusion of the contract;

(4)  the amount of the contract or, in the case of a delivery order contract, the estimated amount of the expenditure or, in the case of a delivery order contract involving several suppliers, the price submitted by each, respectively; and

(5)  in the case of a contract that involves options, the description of the options and the total amount of the expenditure that will be incurred if all options are exercised.

O.C. 531-2008, s. 38; O.C. 432-2013, s. 11.

38.1. The public body publishes in the electronic tendering system any additional expenditure resulting from an amendment to the contract, within 60 days of the amendment, if the initial amount of the contract referred to in section 38 is increased by more than 10%.

The public body then publishes the amount of the additional expenditure, including the expenditures accumulated prior to the expenditure exceeding 10% of the initial amount of the contract and publishes thereafter each additional expenditure.

O.C. 432-2013, s. 11.

38.2. The public body also publishes in the electronic tendering system, within 90 days of the end of a contract referred to in section 38, the final description of the contract. That period is extended to 120 days for a contract entered into following a joint call for tenders referred to in section 15 of the Act.

The final description of the contract contains at least

(1)  the name of the supplier, the date of the end of the contract and the total amount paid;

(2)  in the case of a task order contract involving several suppliers, their respective name and the total amount paid to each supplier; and

(3)  in the case of a contract involving options, the type and number of options exercised and the total amount paid following their exercise.

O.C. 432-2013, s. 11.

38.3. If a delivery order contract involving several suppliers involves a price list whose scope or layout does not make it possible to publish the results in accordance with sections 38 to 38.2, the public body indicates in the electronic tendering system how to obtain the information related to the results.

O.C. 432-2013, s. 11.

DIVISION II CONTRACTS ENTERED INTO BY MUTUAL AGREEMENT OR FOLLOWING AN INVITATION TO TENDER

O.C. 432-2013, s. 11.

39. The public body publishes, in the electronic tendering system, within 30 days of entering into a contract involving an expenditure equal to or greater than $25,000 and entered into by mutual agreement or following an invitation to tender, the initial description of the contract. The description contains at least

(1)  the method for awarding the contract;

(2)  the name of the supplier or, in the case of a delivery order contract involving several suppliers, the names of the suppliers retained;

(3)  the nature of the goods covered by the contract;

(4)  the date of conclusion of the contract;

(5)  the amount of the contract or, in the case of a delivery order contract, the estimated amount of the expenditure or, in the case of a delivery order contract involving several suppliers, the price submitted by each, respectively;

(6)  in the case of a contract that involves options, their description and the total amount of the expenditure that would be incurred if all options are exercised; and

(7)  in the case of a contract entered into by mutual agreement and involving an expenditure equal to or above the public tender threshold, the provision of the Act or of this Regulation under which the contract was awarded and, in the case of a contract awarded pursuant to subparagraph 4 of the first paragraph of section 13 of the Act, a statement of the reasons invoked in support of excluding the contract from the public call for tenders.

O.C. 531-2008, s. 39; O.C. 432-2013, s. 11.

39.1. The public body publishes in the electronic tendering system any additional expenditure resulting from an amendment to the contract, within 60 days of the amendment, if the initial amount of the contract referred to in section 39 is increased by more than 10%.

The public body then publishes the amount of the additional expenditure, including the expenditures accumulated prior to the expenditure exceeding 10% of the initial amount of the contract and publishes thereafter each additional expenditure.

O.C. 432-2013, s. 11.

39.2. The public body also publishes, in the electronic tendering system, within 90 days of the end of the contract referred to in section 39, the final description of the contract. That period is increased to 120 days for a contract entered into for the benefit of joint public bodies referred to in section 15 of the Act.

The public body also publishes, within the same time, the final description of any contract that, at the time of its conclusion, was to involve an expenditure lower than $25,000 when it was entered into, but for which the total amount paid is equal to or greater than $25,000.

The final description of a contract must contain at least

(1)  the name of the supplier, the date of the end of the contract and the total amount paid;

(2)  in the case of a delivery order contract involving several suppliers, their respective name and the total amount paid to each of them;

(3)  in the case of a contract that involves options, the type and number of options exercised and the total amount paid following their exercise; and

(4)  in the case of a contract referred to in the second paragraph, the other information provided for in paragraphs 1 to 6 of section 39 and section 39.1.

O.C. 432-2013, s. 11.

39.3. If a delivery order contract involving several suppliers involves a price list whose scope or layout does not make it possible to publish the results in accordance with sections 39 to 39.2, the public body indicates in the electronic tendering system how to obtain the information related to the results.

O.C. 432-2013, s. 11.

40. Despite sections 39 to 39.3, no publication is required in the case of a contract involving confidential or protected information within the meaning of subparagraph 3 of the first paragraph of section 13 of the Act.

O.C. 531-2008, s. 40; O.C. 432-2013, s. 11.

CHAPTER VIII CONTRACT MANAGEMENT CONDITIONS

DIVISION I SETTLEMENT OF DISPUTES

41. The public body and the supplier must attempt to amicably settle any difficulty that may arise out of a contract by resorting to the dispute resolution clauses in the contract, if any.

If the matter may not be settled in that manner, it may be referred to a court of justice or an adjudicative body, as the case may be, or to an arbitrator. In the latter case, a general or special authorization from the Minister of Justice is required for public bodies referred to in subparagraph 1 or 2 of the first paragraph of section 4 of the Act.

O.C. 531-2008, s. 41.

DIVISION II PERFORMANCE EVALUATION

42. A public body must record in a report the evaluation of any supplier whose performance is considered to be unsatisfactory.

O.C. 531-2008, s. 42.

43. The public body must complete its evaluation not later than 60 days after the end of the contract and send a copy of the evaluation to the supplier.

O.C. 531-2008, s. 43.

44. A supplier may forward comments in writing on the report to the public body within 30 days following receipt of a report of unsatisfactory performance.

O.C. 531-2008, s. 44.

45. Within 30 days after the expiry of the time in section 44 or following receipt of the supplier’s comments, as the case may be, the chief executive officer of the public body is to uphold or cancel the evaluation and inform the supplier of the decision. If the chief executive officer fails to act within the prescribed time, the supplier’s performance is considered to be satisfactory.

O.C. 531-2008, s. 45.

CHAPTER VIII.1 OFFENCES

O.C. 847-2011, s. 2.

45.1. A violation of section 37.4 or 37.5 constitutes an offence.

O.C. 847-2011, s. 2.

CHAPTER IX TRANSITIONAL AND FINAL

46. (Revoked).

O.C. 531-2008, s. 46; O.C. 754-2010, s. 1; O.C. 432-2013, s. 12.

46.1. The Minister of Revenue is charged with the application and enforcement of sections 37.2, 37.4, 37.5 and 45.1.

O.C. 847-2011, s. 3.

47. (Omitted).

O.C. 531-2008, s. 47.

SCHEDULE 1

(ss. 21, 22, 26)

QUALITY EVALUATION CONDITIONS FOR A CONTRACT AWARD BASED ON THE LOWEST PRICE

(1) At least 3 criteria are required for quality evaluation.

(2) The public body must specify in the tender documents, for each criterion, the elements of quality required to reach an “acceptable level of performance”, which corresponds to the public body’s minimum expectations for the criterion.

(3) An acceptable tender in terms of quality is a tender that, for each criterion, meets the “acceptable level of performance”. A tender that does not reach that level of performance in respect of any criterion is rejected.

O.C. 531-2008, Sch. 1.

SCHEDULE 2

(ss. 21, 23, 26)

QUALITY EVALUATION CONDITIONS FOR A CONTRACT AWARD BASED ON THE LOWEST ADJUSTED PRICE

(1) The evaluation grid must have at least 3 quality evaluation criteria.

(2) The public body must specify in the tender documents, for each criterion, the elements of quality required to reach an “acceptable level of performance”, which corresponds to the public body’s minimum expectations for the criterion.

(3) Each criterion in the evaluation grid is weighted on the basis of its importance for the carrying out of the contract. The total weight of the criteria is 100%.

(4) Each criterion is evaluated on a scale of 0 to 100 points, the “acceptable level of performance” corresponding to 70 points.

(5) At least 70 points may be required in respect of any criterion described in the evaluation grid. A tender that does not reach that minimum is rejected.

(6) The final score for the quality of a tender is the total of the weighted scores obtained in respect of each criterion; the weighted scores are determined by multiplying the score obtained for a criterion by the weight of that criterion.

(7) An acceptable tender in terms of quality is a tender whose final score is at least 70 points.

(8) The price of each acceptable tender is adjusted according to the following formula:

Adjusted price = Price submitted

__________________________________

Quality adjustement factor

The quality adjustment factor is equal to:

Final score for quality - 70

1 + K (________________________________)

30

where

“K” is the additional percentage that the public body is willing to pay to move from a 70-point tender to a 100-point tender, for all criteria.

(9) The public body determines in the tender documents the value of K, which must range from 15% to 30%.

O.C. 531-2008, Sch. 2.

TRANSITIONAL

2013

(O.C. 432-2013) SECTION 13Sections 1 to 4, section 5, to the extent that that section concerns the provisions of section 15.2 to 15.9 of this Regulation, and the provisions of section 6 apply only to calls for tenders issued as of 23 May 2013.

Section 11, insofar as it concerns sections 38, 38.2, 38.3, 39, 39.2, 39.3 and 40 of this Regulation, applies to contracts in progress on 15 September 2013, regardless of the periods indicated therein, and to contracts entered into from that date.

Section 11, insofar as it concerns sections 38.1 and 39.1 of this Regulation, applies to any additional expenditure resulting from an amendment to the contract made as of 15 September 2013.

2011

(O.C. 847-2011) SECTION 4A violation of section 37.4 or 37.5 committed between 15 September 2011 and 15 March 2012 inclusively will result in the issue of a warning to the offender rather than a statement of offence.

SECTION 5. This Regulation applies only to calls for tenders issued and contracts entered into by mutual agreement by a public body as of 15 September 2011.

2010

(O.C. 353-2010) SECTION 2Despite the third and fourth paragraphs of section 37.1 of this Regulation, a supplier remains eligible to submit a tender for a call for tenders whose tender closing time is prior to 1 October 2010 even if the supplier’s attestation is issued after tender closing time.

SECTION 3. The Chair of the Conseil du trésor is to report to the Government about the first year of application of section 37.1 of this Regulation.

SECTION 4. The Division IV of this Regulation applies only to call for tenders issued and contracts entered into by mutual agreement as of 1 June 2010.

REFERENCES

O.C. 531-2008, 2008 G.O. 2, 2079

O.C. 694-2009, 2009 G.O. 2, 1861A

O.C. 754-2010, 2010 G.O. 2, 2565

S.Q. 2010, c. 31, s. 175

O.C. 679-2011, 2011, G.O. 2, 1587

O.C. 847-2011, 2011 G.O. 2, 2543

O.C. 432-2013, 2013 G.O. 2, 1097