C-65.1, r. 4 - Regulation respecting certain service contracts of public bodies

À jour au 23 mai 2013

Ce document a valeur officielle.

chapter C-65.1, r. 4

Regulation respecting service contracts of public bodies

Act respecting contracting by public bodies

(chapter C-65.1, s. 23).

O.C. 533-2008; O.C. 696-2009, s. 1.

CHAPTER I SCOPE

1. This Regulation applies to service contracts referred to in subparagraph 3 of the first paragraph of section 3 of the Act respecting contracting by public bodies (chapter C-65.1) and contracts considered as such under the third paragraph of that section.

O.C. 533-2008, 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. 533-2008, 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, the time for sending an addendum set out in the second paragraph of section 9 and the composition of the selection committee provided for in the second paragraph of section 26 may differ.

In the case of a contract referred to in Chapter III, the public call for tenders must comply with the special provisions of that chapter.

O.C. 533-2008, 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 services required;

(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 concerning additional services of the same nature as those initially required, at the same price and intended to fulfil the needs referred to in subparagraph 2 of the second paragraph.

O.C. 533-2008, s. 4; O.C. 680-2011, s. 1; O.C. 430-2013, s. 1.

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

(1)  a description of the procurement requirements and conditions on which the contract is to be carried out;

(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 service providers and the compliance requirements for tenders;

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

(5)  the tender opening procedure;

(6)  where a quality evaluation of tenders is to be made, the evaluation rules, including the criteria selected and, for the purposes of Schedule 2, their respective weighting;

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

(8)  the contract to be signed; and

(9)  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 use the services of the selected provider, on the conditions specified in the tender documents.

O.C. 533-2008, s. 5; O.C. 430-2013, s. 2.

6. In order to submit a tender, a service provider 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 service provider’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 service provider 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 service provider who fails to comply with any of those requirements is ineligible.

O.C. 533-2008, 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;

(6)  the price submitted and the quality demonstration are not presented separately as required by section 16, where applicable; and

(7)  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 service provider of several tenders for the same call for tenders entails automatic rejection of all the service provider’s tenders.

O.C. 533-2008, s. 7; O.C. 430-2013, 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. 430-2013, s. 4.

8. Provided that it is specified in the tender documents, a public body may refuse to consider any service provider 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 has had a contract cancelled because of failure to comply with the contract conditions.

O.C. 533-2008, s. 8.

9. A public body may amend the tender documents by means of an addendum sent to the service providers 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. 533-2008, s. 9; O.C. 680-2011, s. 2.

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

O.C. 680-2011, s. 3.

DIVISION III SERVICE CONTRACTS OF A TECHNICAL NATURE

§ 1 . — Calling for and opening of tenders

10. A public body solicits solely a price to award a service contract of a technical nature.

O.C. 533-2008, 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 service providers 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. 533-2008, s. 11.

§ 2 . — Evaluation of tenders and contract awarding

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

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

O.C. 533-2008, s. 12.

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

O.C. 533-2008, s. 13.

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

O.C. 533-2008, 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 one service provider submitted a compliant tender;

(2)  the service provider 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. 533-2008, s. 15.

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

O.C. 430-2013, s. 5.

DIVISION IV PROFESSIONAL SERVICE CONTRACTS

§ 1 . — Calling for and opening of tenders

16. A public body must evaluate the quality of a tender to award a professional service contract; the public body must request a price, if required, and a quality demonstration based on predetermined evaluation criteria.

The price and the quality demonstration must be presented separately so that the first paragraph of section 26 may apply.

O.C. 533-2008, s. 16.

17. The provisions of the first paragraph of section 11 apply to a professional service contract. At the public opening of tenders, only the names of the service providers are disclosed and the results of the opening are made available in accordance with the third paragraph of that section.

Where the public body makes a call for tenders in 2 stages, the first paragraph does not apply with respect to tenders submitted during the second stage.

O.C. 533-2008, s. 17; O.C. 430-2013, s. 6.

§ 2 . — Evaluation of tenders and contract awarding

18. The provisions of section 12 apply to professional service contracts.

O.C. 533-2008, s. 18.

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

O.C. 533-2008, s. 19.

20. 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 service provider who submitted the lowest price.

O.C. 533-2008, s. 20.

21. 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 service provider who submitted the lowest adjusted price.

O.C. 533-2008, s. 21.

22. Where an evaluation is based solely on measurement of the level of quality, the public body must apply the evaluation conditions in sections 1 to 7 of Schedule 2 and award the contract to the service provider whose acceptable tender obtained the highest final score.

O.C. 533-2008, s. 22.

23. A public body may solicit only a quality demonstration if a tariff applicable to the contract concerned exists and has been established under an Act or approved by the Government or the Conseil du trésor.

O.C. 533-2008, s. 23.

24. Despite section 23, a public body must solicit only a quality demonstration to award an architecture or engineering contract, excluding a forest engineering contract.

If such a contract, excluding a contract for soils and materials engineering, involves an expenditure below $250,000 and a regionalized public call for tenders is issued, the project manager must be a permanent resource of the service provider. The workplace of the permanent resource must be an establishment of the provider that has been in the region specified in the tender documents for at least 2 months before the tender closing date.

For the purposes of the second paragraph, permanent resource means a natural person who, on an annual basis, devotes at least 75% of his or her working time to the service provider and at least 1,100 hours.

O.C. 533-2008, s. 24; O.C. 873-2008.

25. A public body may make a public call for tenders in 2 stages in order to award a contract.

At the first stage, the public body selects service providers by soliciting only a quality demonstration. The tender documents must indicate whether every selected service provider or only a limited number of them will be invited to take part in the second stage.

The public body opens the tenders only in the presence of the secretary of the selection committee or its representative at the designated place and on the date and time fixed in the tender documents.

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

The selection committee evaluates the quality of a tender according to the following conditions and procedure:

(1)  if all the selected service providers are invited to take part in the second stage, the quality of a tender is evaluated in accordance with the evaluation conditions in Schedule 1 and all the providers who meet at least the minimum quality level are retained;

(2)  if only a limited number of service providers are invited to take part in the second stage, the quality of a tender is evaluated in accordance with the evaluation conditions in sections 1 to 7 of Schedule 2 and only those who obtain the highest final scores are retained.

If the public body rejects a tender because the service provider is ineligible or the tender is non-compliant, the public body so informs the service provider and gives the reason for the rejection at the time of sending selected service providers their invitation to take part in the second stage.

The public body publishes in the electronic tendering system the names of the service providers who took part in the first stage within 4 business days following the public opening of the tenders filed during the second stage.

At the second stage, the public body invites the selected service providers to submit a tender that includes only a price or a quality demonstration with or without a price.

If only a price is required, sections 10 to 15.1 apply and, where the quality level of a tender is evaluated, sections 16 to 24 and 26 to 28 apply.

O.C. 533-2008, s. 25; O.C. 430-2013, s. 7.

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

The selection committee must be composed of a secretary in charge of coordinating activities and of at least 3 members.

O.C. 533-2008, s. 26.

27. The provisions of sections 14 to 15.1 apply to a professional service contract, except that the condition in subparagraph 1 of the second paragraph of section 15 is that only one service provider must have submitted an acceptable tender.

O.C. 533-2008, s. 27; O.C. 430-2013, s. 8.

28. 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, where applicable, price of the successful tenderer, and the resulting adjusted price.

O.C. 533-2008, s. 28; O.C. 873-2008.

29. Except for contracts for financial or banking services, section 16 and sections 18 to 28 apply where the public body evaluates the quality of a tender following an invitation to tender. However, the composition of the selection committee provided for in the second paragraph of section 26 may differ.

O.C. 533-2008, s. 29.

DIVISION IV.1 TENDERS WITH AN UNUSUALLY LOW PRICE

O.C. 430-2013, s. 9.

29.1. The price of a tender is unusually low if an extensive and documented analysis by the committee referred to in section 29.3 shows that the submitted price cannot enable the service provider to carry out the contract on the conditions set in the tender documents without jeopardizing the performance of the contract.

O.C. 430-2013, s. 9.

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

O.C. 430-2013, s. 9.

29.3. If the service provider fails to submit explanations within the time set in section 29.2 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. 430-2013, s. 9.

29.4. 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 service providers 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 service provider concerning the existence of particular facts that have an influence on the tendered price, such as

(a)  the conditions for the carrying out of the services covered by the call for tenders;

(b)  the exceptionally favorable circumstances helping the service provider in the performance of the contract;

(c)  the innovative character of the tender;

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

(e)  the government financial assistance received by the service provider.

O.C. 430-2013, s. 9.

29.5. 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 service provider.

O.C. 430-2013, s. 9.

29.6. The service provider may, within 10 days of receiving the report referred to in section 29.5, send written comments to the contract rules compliance monitor of the public body.

O.C. 430-2013, s. 9.

29.7. 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. 430-2013, s. 9.

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

O.C. 430-2013, s. 9.

CHAPTER III SPECIAL RULES FOR AWARDING CONTRACTS

DIVISION I TASK ORDER CONTRACTS

30. A public body may enter into a task order contract with one or more service providers when the procurement requirements are recurrent and the number of requests, the rate or frequency at which they are to be performed are uncertain.

O.C. 533-2008, s. 30.

31. The public body must indicate in the tender documents the approximate monetary value of the services that the public body intends to request.

O.C. 533-2008, s. 31.

32. If the task order contract is entered into with more than one service provider, the performance requests are made to the service provider who submitted the lowest price, unless the provider cannot perform the service, in which case the other providers are solicited according to their respective rank.

O.C. 533-2008, s. 32.

32.1. (Revoked).

O.C. 696-2009, s. 2; O.C. 430-2013, s. 10.

DIVISION II SERVICE CONTRACTS OF A TECHNICAL NATURE

33. Despite section 10, a public body may decide to evaluate the quality of a tender in order to award a service contract of a technical nature and must then apply the provisions of Division IV of Chapter II.

O.C. 533-2008, s. 33.

DIVISION III PROFESSIONAL SERVICE CONTRACTS

34. Despite section 16, a public body may, except in the cases provided for in section 24, decide to solicit only a price in order to award a professional service contract; the public body must then apply the provisions of Division III of Chapter II.

O.C. 533-2008, s. 34.

CHAPTER IV SPECIAL CONTRACTS

DIVISION I LEGAL SERVICE CONTRACTS

35. A legal service contract may be entered into by mutual agreement.

O.C. 533-2008, s. 35.

36. For the public bodies referred to in subparagraph 1 or 2 of the first paragraph of section 4 of the Act, a legal service contract is entered into by the Minister of Justice or with the Minister’s consent, except if such a contract concerns only 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).

O.C. 533-2008, s. 36.

DIVISION II FINANCIAL OR BANKING SERVICE CONTRACTS

37. A financial or banking service contract may be entered into by mutual agreement.

O.C. 533-2008, s. 37.

38. For the public bodies referred to in subparagraph 1 or 2 of the first paragraph of section 4 of the Act, a financial or banking service contract is entered into by the Minister of Finance or with the Minister’s consent.

O.C. 533-2008, s. 38.

DIVISION III ADVERTISING CAMPAIGN CONTRACTS

39. A public body may solicit only a quality demonstration to award an advertising campaign contract.

The amount indicated in the contract may not be greater than the amount predetermined in the tender documents.

O.C. 533-2008, s. 39.

DIVISION IV TRANSPORT INFRASTRUCTURE CONTRACTS

40. In the case of professional services for engineering or land surveying relating to transport infrastructures for which only a quality demonstration is solicited in accordance with section 23 or 24, the special awarding rules below may be applied with the authorization of the Minister of Transport if

(1)  following a public call for tenders, contracts are awarded to more than one service provider, despite section 22; or

(2)  a task order contract is awarded to more than one service provider, despite section 32.

For the purposes of subparagraph 1 of the first paragraph, contracts are awarded to the service providers whose acceptable tenders obtained the highest final scores. If the monetary value of the contracts differs, the contract with the highest value is awarded to the service provider whose acceptable tender obtained the highest final score, and so on.

For the purposes of subparagraph 2 of the first paragraph, the tender documents must indicate whether all or a limited number of the service providers who submitted an acceptable tender will be retained. In the case of a limited number, the service providers retained are those who obtained the highest final scores. Performance requests are then distributed among the service providers retained in a fair manner that takes into account the objectives set out in subparagraphs 2 and 6 of the first paragraph of section 2 of the Act.

O.C. 533-2008, s. 40; O.C. 873-2008.

DIVISION V TRAVEL SERVICE CONTRACTS

41. A public body may solicit only a quality demonstration to award a travel service contract involving an expenditure equal to or above the public tender threshold.

In that case, the public body negotiates the amount of the contract with the service provider whose acceptable tender obtained the highest score for quality.

O.C. 533-2008, s. 41.

DIVISION VI SERVICE CONTRACTS FOR ACTIVITIES ON FOREIGN SOIL

42. A service 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. 533-2008, s. 42.

DIVISION VI.1 CONTRACT RESPECTING THE PRODUCTION OF FOREST PLANTS

O.C. 430-2013, s. 11.

42.0.1. A contract respecting the production of forest plants may be entered into by mutual agreement with a forest plant producer covered by a joint plan established in accordance with the Act respecting the marketing of agricultural, food and fish products (chapter M-35.1).

O.C. 430-2013, s. 11.

DIVISION VI.2 DAMAGE INSURANCE CONTRACT

O.C. 430-2013, s. 11.

42.0.2. The premium of a damage insurance contract that involves an option to renew may be amended at the time of renewal if the tender documents set the terms and conditions allowing to determine the premium.

O.C. 430-2013, s. 11.

DIVISION VI.3 CONTRACT FOR THE REPAIR OF AN AIRCRAFT

O.C. 430-2013, s. 11.

42.0.3. A contract for the repair of an aircraft including the rental of spare components required during the repair may be entered into by mutual agreement where the evaluation of the work to be performed cannot be carried out before the beginning of the repair services.

O.C. 430-2013, s. 11.

DIVISION VII OTHER SERVICE CONTRACTS

O.C. 696-2009, s. 3.

42.1. A service contract for the hiring of an investigator, conciliator, negotiator, mediator, arbitrator, a physician or a dentist in matters of medical assessment related to their field or a person as an expert court witness may be entered into by mutual agreement.

O.C. 696-2009, s. 3.

CHAPTER V QUALIFICATION OF SERVICE PROVIDERS

43. A public body may qualify service providers prior to the acquisition process if

(1)  the qualification of service providers is preceded by a public notice to that effect on the electronic tendering system indicating, with the necessary modifications, the information provided for in subparagraphs 1, 2 and 4 to 6 of the second paragraph of section 4, except the period for receiving qualification applications that may not be under 25 days following the date of publication of the public notice of qualification;

(2)  a list of the qualified service providers is published on the electronic tendering system and every provider is informed of entry on the list or the reason for refusal if entry is denied;

(3)  a public notice of qualification is published again at least once a year so as to allow the qualification of other service providers during the period of validity of the list, which may not exceed 3 years; and

(4)  the public notice of qualification must remain accessible in the electronic tendering system for the entire period of validity of the list.

O.C. 533-2008, s. 43; O.C. 430-2013, s. 12.

44. Where the public body evaluates the quality of applications for qualification, it must set up a selection committee within the meaning of section 26 and apply the evaluation conditions in Schedule 1 or in sections 1 to 7 of Schedule 2.

O.C. 533-2008, s. 44.

45. Except in the cases described in section 13 of the Act, every contract subsequent to the qualification of service providers is limited to qualified providers 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 only open to those providers.

O.C. 533-2008, s. 45; O.C. 430-2013, s. 13.

CHAPTER VI CONDITIONS TO BE MET PRIOR TO ENTERING INTO CONTRACTS

DIVISION I REQUIRED AUTHORIZATION

46. The authorization of the chief executive officer of the public body is required for every contract of a repetitive nature 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 task 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 service provider submitted a compliant tender; or

(2)  only one service provider submitted an acceptable tender following a quality evaluation.

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. 533-2008, s. 46; O.C. 430-2013, s. 14.

DIVISION II AFFIRMATIVE ACTION PROGRAM

47. 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. 533-2008, s. 47.

48. Where the amount of a service contract is $100,000 or more, or where the amount of a service subcontract is $100,000 or more, the contract or subcontract may not be entered into with a Québec service provider or subcontractor whose business employs more than 100 persons unless the service provider 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 service provider or subcontractor of another province or territory of Canada in respect of which an employment equity program is applicable, and that service provider or subcontractor employs more than 100 persons, the service provider or subcontractor must provide an attestation to the effect that the service provider 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 service provider 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 service provider or subcontractor must provide an attestation to the effect that the service provider or subcontractor has made a commitment to implement an employment equity program complying with the federal program.

O.C. 533-2008, s. 48; O.C. 430-2013, s. 15.

49. The Chair of the Conseil du trésor cancels the attestation issued to a service provider referred to in the first paragraph of section 48 who does not fulfill a commitment to implement an employment equity program.

Any service provider whose attestation referred to in section 48 has been cancelled may not enter into a service contract with a body referred to in section 47 or a service subcontract related to such contract as long as a new attestation has not been issued.

O.C. 533-2008, s. 49; O.C. 430-2013, s. 16.

DIVISION III QUALITY ASSURANCE, SUSTAINABLE DEVELOPMENT AND ENVIRONMENT

50. 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 service provider to submit a tender and grant to a service provider 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 service provider 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.

In the case of a contract whose quality evaluation is based solely on the quality measurement, the public body must ascertain that there is enough competition to allow the first paragraph to apply.

O.C. 533-2008, s. 50; O.C. 430-2013, s. 17.

DIVISION IV ATTESTATION FROM REVENU QUÉBEC

O.C. 355-2010, s. 1; O.C. 848-2011, s. 1.

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

O.C. 355-2010, s. 1; O.C. 848-2011, s. 1.

50.2. The attestation from Revenu Québec is issued to every service provider who, on the date indicated in the attestation, has filed the returns and reports that the provider 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 provider to ensure payment and the provider has not defaulted.

O.C. 355-2010, s. 1; O.C. 848-2011, s. 1.

50.3. 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 service provider holds an attestation is considered to be an eligibility requirement within the meaning of section 6.

O.C. 848-2011, s. 1.

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

O.C. 848-2011, s. 1.

50.5. No person may help another person, by an act or omission, to contravene section 50.4, or encourage, advise, allow, authorize or order the person to contravene that section.

O.C. 848-2011, s. 1.

50.6. Section 50.1 does not apply to a service provider that does not have in Québec an establishment where activities are carried on on a permanent basis, clearly identified under the service provider’s name and accessible during regular business hours.

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

O.C. 848-2011, s. 1.

CHAPTER VII INFORMATION TO BE PUBLISHED

51. Following a public call for tenders, the public body must publish on the electronic tendering system, within 15 days of the awarding of the contract, the name of the successful tenderer and the amount of the contract or, in the case of a task order contract, the estimated amount of the expenditure. In addition, if a contract involves renewal options, the public body also publishes the total amount of the expenditure that would be incurred if all options were exercised.

In the case of a task order contract involving several service providers, the public body must publish the names of the services providers retained and their respective total price. If such a contract involves price lists whose scope or layout prevents the publication of the results, the public body must indicate on the electronic tendering system how information on the results may be obtained.

O.C. 533-2008, s. 51.

52. The public body must publish on the electronic tendering system, at least once every 6 months, a list of the contracts involving an expenditure greater than $25,000 entered into by mutual agreement or following an invitation to tender, except contracts involving confidential or protected information within the meaning of subparagraph 3 of the first paragraph of section 13 of the Act.

O.C. 533-2008, s. 52.

53. The list to be published pursuant to section 52 must contain at least the following information:

(1)  the name of the service provider, the date and the amount of the contract or, in the case of a task order contract, the estimated amount of the expenditure;

(2)  in the case of a contract that involves renewal options, in addition to the information required in paragraph 1, the total amount of the expenditure that would be incurred if all options were exercised;

(3)  the nature of the service to be provided under the contract; and

(4)  in the case of a contract by mutual agreement involving an expenditure above the public tender threshold, the provision in the Act or this Regulation under which the contract was awarded.

O.C. 533-2008, s. 53.

CHAPTER VIII CONTRACT MANAGEMENT CONDITIONS

DIVISION I SETTLEMENT OF DISPUTES

54. The public body and the service provider 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 cannot 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. 533-2008, s. 54.

DIVISION II PERFORMANCE EVALUATION

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

O.C. 533-2008, s. 55.

56. 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 service provider.

O.C. 533-2008, s. 56.

57. A service provider 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. 533-2008, s. 57.

58. Within 30 days after the expiry of the time in section 57 or following receipt of the service provider’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 service provider of the decision. If the chief executive officer fails to act within the prescribed time, the service provider’s performance is considered to be satisfactory.

O.C. 533-2008, s. 58.

CHAPTER VIII.1 OFFENCES

O.C. 848-2011, s. 2.

58.1. A violation of section 50.4 or 50.5 constitutes an offence.

O.C. 848-2011, s. 2.

CHAPTER IX TRANSITIONAL AND FINAL

59. (Revoked).

O.C. 533-2008, s. 59; O.C. 755-2010, s. 1; O.C. 430-2013, s. 19.

60. (Omitted).

O.C. 533-2008, s. 60.

61. (Omitted).

O.C. 533-2008, s. 61.

62. (Omitted).

O.C. 533-2008, s. 62.

62.1. The Minister of Revenue is charged with the application and enforcement of sections 50.2, 50.4, 50.5 and 58.1.

O.C. 848-2011, s. 3.

63. (Omitted).

O.C. 533-2008, s. 63.

SCHEDULE 1

(ss. 19, 20, 25, 28, 44)

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. 533-2008, Sch. 1.

SCHEDULE 2

(ss. 19, 21, 22, 25, 28, 44)

Quality evaluation conditions for a contract award based on the lowest adjusted price or based on the final score for the highest quality

(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. 533-2008, Sch. 2.

TRANSITIONAL

2013

(O.C. 430-2013) SECTION 20. Section 32.1 of of this Regulation, as they read on 22 May 2013, continues to apply to task order contracts entered into with several service providers before 23 May 2013 and whose object is the rental of heavy machinery with operator.

SECTION 21. Despite sections 9.1, 15.1 and 32 of this Regulation, the following rules apply to calls for tenders concerning a task order contract with several service providers whose object is the rental of heavy machinery with operator and to the resulting contract:

(1) tender documents and, if applicable, any addendum amending them, may be obtained free of charge from the public body making the call for tenders. The documents must contain clauses relating to the management of the contract to be entered into;

(2) the registered machines are attached to an establishment of the service provider situated in Québec in one of the administrative subdivisions determined in the tender documents or, if there is no such establishment in Québec, in the administrative subdivision situated the nearest to their establishment outside Québec;

(3) a service provider that has not taken part in the call for tenders may, on the conditions provided in the tender documents, register his or her machinery after the date on which the contract is entered into;

(4) a service provider that has registered his or her machinery may, on the conditions provided for in the tender documents, register a new machine after the date on which the contract is entered into;

(5) a service provider may, on the conditions provided for in the tender documents, replace registered machinery by a machine of another class or subclass;

(6) a service provider may, on the conditions provided for in the tender documents, replace a registered machine without changing its class or subclass but by indicating lease conditions different from the conditions applicable to the machine replaced;

(7) the registration of a machine may be transferred to the name of another service provider where the transferor has replaced it by a new machine;

(8) a registered machine may be attached to another establishment of the service provider situated in another administrative subdivision;

(9) where any of the situations described in subparagraphs 3 to 8 of this paragraph occurs, the machinery involved is registered with a “late” notation;

(10) the public body may, to determine the lowest tenderer, take into account, in addition to the hourly rate submitted for the machine, the machine’s age and hourly transportation cost and the operator’s travelling and boarding expenses and thus the performance requests are made on the basis of the weighted coefficient determined for each machine;

(11) in the administrative subdivision where the service is required, the performance requests are made to the service provider that has a machine registered therein according to paragraph 2 and whose machine has obtained the lowest weighted coefficient, unless the provider cannot perform the service, in which case the other providers that have a similar machine registered according to paragraph 2 and situated in that same administrative subdivision are solicited according to their respective rank;

(12) if no machine referred to in subparagraph 11 is available, the machines registered with a “late” notation and situated in the administrative subdivision where the service is required may then be considered. The public body makes the performance request to the service provider whose machine has obtained the lowest weighted coefficient, unless the service provider is unable to perform the service, in which case the other service providers that have a similar machine are solicited according to their respective rank.

For the purposes of this section,

(1) “weighted coefficient” means the quotient obtained by dividing the sum of the hourly rate submitted for the machine, the machine’s hourly transportation cost, the operator’s hourly travelling expenses and boarding expenses, where applicable, by the maximum total hourly rental rate in effect, as indicated in the booklet Taux de location de machinerie lourde, published by the Centre de services partagés du Québec;

(2) “hourly rate submitted for the machine” means the hourly rate indicated by the service provider or, if that rate is higher than the maximum total hourly rental rate in effect or if the machine is registered with a “late” notation, the maximum total hourly rate.

This section applies only to call for tenders issued within 3 years of 23 May 2013 and to contracts entered into following those calls for tenders.

SECTION 22. Sections 1 to 4, 6, 7, 9 and 11, to the extent that that section concerns section 42.0.2 of this Regulation, apply only to calls for tenders issued as of 23 May 2013.

Section 12 applies only to qualification proceedings issued as of that date.

Section 18, insofar as it concerns sections 51, 51.2, 51.3, 52, 52.2, 52.3 and 53 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 18, insofar as it concerns sections 51.1 and 52.1 of this Regulation, applies to any additional expenditure resulting from an amendment to the contract made as of 15 September 2013.

2011

(O.C. 848-2011) SECTION 4A violation of section 50.4 or 50.5 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. 355-2010) SECTION 2Despite the third and fourth paragraphs of section 50.1 of this Regulation, a service provider remains eligible to submit a tender for a call for tenders whose tender closing time is prior to 1 October 2010 even if the provider’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 50.1 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. 533-2008, 2008 G.O. 2, 2099

O.C. 873-2008, 2008 G.O. 2, 4617

O.C. 696-2009, 2009 G.O. 2, 1862A

O.C. 355-2010, 2010 G.O., 1109

O.C. 755-2010, 2010 G.O. 2, 2565

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

O.C. 680-2011, 2011 G.O. 2, 1588

O.C. 848-2011, 2011 G.O. 2, 2545

O.C. 430-2013, 2013 G.O. 2, 1087