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

À jour au 1^er septembre 2020

Ce document a valeur officielle.

chapter C-65.1, r. 2

Regulation respecting certain supply contracts of public bodies

Act respecting contracting by public bodies

(chapter C-65.1, a. 23).

O.C. 531-2008; O.C. 292-2016, s. 1

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) and to the contract considered as such in accordance with the third paragraph of that section, except supply contracts referred to in the Regulation respecting contracting by public bodies in the field of information technologies (chapter C-65.1, r. 5.1).

O.C. 531-2008, s. 1; O.C. 292-2016, s. 2; S.Q. 2018, c. 10, s. 12.

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, the place of delivery and the expected duration of the contract or the calendar for the delivery of the goods;

(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;

(5.2)  if applicable, an indication that tenders may be transmitted electronically and that such transmission may only be done 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;

(6.1)  the deadline for filing complaints under section 21.0.4 of the Act; that deadline is determined, subject to the third paragraph, by adding to the date of the notice of the call for tenders a period corresponding to half the time for receiving tenders but which may not be less than 10 days; and

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

The public body must ensure that there is a period of at least 4 business days between the closing date and the deadline referred to in subparagraphs 6 and 6.1, respectively, of the second paragraph. For the purposes of this Regulation, Saturday is considered a holiday, as are 2 January and 26 December.

For the purposes of this Regulation, “option” means an option to renew or an option to acquire additional goods identical to those initially acquired, offered 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; O.C. 292-2016, s. 3; S.Q. 2018, c. 10, s. 13; S.Q. 2017, c. 27, s. 231.

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)  (paragraph revoked);

(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 element used as a basis by the public body for the purpose of adjusting the price so as to calculate the total acquisition cost referred to in section 15.1.1, and the calculation to be applied; and

(7)  any other particular required under this Regulation.

O.C. 531-2008, s. 5; O.C. 432-2013, s. 2; O.C. 292-2016, s. 4.

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 set out the cases that will entail the automatic rejection of the tender, namely

(1)  subject to the fourth paragraph of section 12, the closing date and time for receiving tenders have not been complied with and, in the case of a tender sent in paper form, non-compliance with the place designated for its reception;

(2)  the absence of the document evidencing the tenderer’s undertaking or of the document related to the tendered price or, in the case of a tender sent in paper form, the required signature of an authorized person is missing on any of those documents;

(3)  the tender is conditional or restrictive;

(4)  in the case of a tender transmitted electronically, the fact that the tender was not transmitted through the electronic tendering system or a tender that is unintelligible, infected or otherwise illegible once its integrity has been established by the electronic tendering system;

(5)  if the call for tenders includes the acquisition of goods subject to technical specifications or compliance tests, non-compliance with the requirements imposed in that respect; and

(6)  any other compliance requirement stated in the tender documents as entailing the 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. For the purposes of this paragraph, transmitting the same tender by electronic means and on paper form is considered as the filing of several tenders.

O.C. 531-2008, s. 7; O.C. 432-2013, s. 3; O.C. 292-2016, s. 5; S.Q. 2018, c. 10, s. 14.

7.0.1. Compliance requirements must also indicate that, in the case of a tender transmitted electronically whose integrity has not been ascertained, failure to remedy that irregularity within 2 business days following the default notice sent by the public body entails rejection of the tender.

A tender transmitted electronically within the period set in the first paragraph to remedy the faulty integrity of a tender sent previously is substituted for the previous tender as soon as its integrity is ascertained by the public body. That tender is then deemed to have been transmitted before the tender closing date and time.

O.C. 292-2016, s. 6.

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. An addendum must contain the information relating to the filing deadline for complaints under section 21.0.4 of the Act or section 40 of the Act respecting the Autorité des marchés publics (chapter A-33.2.1) or specify whether the amendments to the tender documents result from a decision of the Autorité des marchés publics.

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.

An amendment made before the complaint filing deadline indicated on the electronic tendering system that modifies the tender closing date defers the complaint filing deadline by a period corresponding to half the time by which the bid submission period is extended.

Subject to the second paragraph, any amendment made 3 days or less before the tender closing date results in a minimum 3-day deferral of that date. However, the deferral must be such as to ensure that the day preceding the new tender closing date is a business day.

Provided that it is specified in the tender documents, a public body may reserve the right to not consider a request for details made by a supplier if the request is sent to the public body less than 3 business days before the tender closing date and time.

O.C. 531-2008, s. 9; O.C. 679-2011, s. 2; O.C. 292-2016, s. 7; S.Q. 2017, c. 27, s. 232.

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.

9.2. A tender may be transmitted electronically only through the electronic tendering system.

O.C. 292-2016, s. 8.

DIVISION II.1 PROCESSING OF COMPLAINTS ABOUT A PUBLIC CALL FOR TENDERS

S.Q. 2017, c. 27, s. 233.

9.3. A complaint under section 21.0.4 of the Act about a public call for tenders must be filed with the public body not later than the complaint filing deadline indicated on the electronic tendering system. Such a complaint may pertain only to the content of the tender documents available not later than 2 days before that deadline.

The complainant must, without delay, send a copy of the complaint to the Autorité des marchés publics for information purposes.

S.Q. 2017, c. 27, s. 233.

9.4. On receiving a first complaint, the public body must make an entry to that effect on the electronic tendering system without delay, after having ascertained the complainant’s interest.

S.Q. 2017, c. 27, s. 233.

9.5. The public body must send the complainant its decision electronically after the complaint filing deadline but not later than 3 days before the tender closing date it has determined. If necessary, the public body must defer the tender closing date.

The public body must also, if applicable, inform the complainant of the complainant’s right to file a complaint under section 37 of the Act respecting the Autorité des marchés publics (chapter A-33.2.1) within 3 days after receiving the decision.

S.Q. 2017, c. 27, s. 233.

9.6. If the public body has received two or more complaints about the same public call for tenders, it must send both or all of its decisions at the same time.

S.Q. 2017, c. 27, s. 233.

9.7. The public body must, when sending its decision on a complaint filed with it, make an entry to that effect on the electronic tendering system without delay.

S.Q. 2017, c. 27, s. 233.

9.8. The public body must defer the tender closing date by the number of days needed to allow a minimum period of 7 days to remain from the date its decision is sent.

S.Q. 2017, c. 27, s. 233.

9.9. If, 2 days before the tender closing date, the public body has not indicated on the electronic tendering system that it has sent its decision on a complaint, the system operator must, without delay, defer the tender closing date by 4 days.

If the deferred date falls on a holiday, it must again be deferred to the second next business day. If the day preceding the deferred date is not a business day, that date must be deferred to the next business day.

S.Q. 2017, c. 27, s. 233.

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.

10.1. If a tender is transmitted electronically, the public body must, at the opening of tenders, ascertain the integrity of the tender through the electronic tendering system.

O.C. 292-2016, s. 9.

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 public body discloses the names of all the suppliers, including the name of any supplier who transmitted electronically a tender whose integrity has not been ascertained, although such information is subject to verification.

The public body also discloses, subject to the same verification, the respective total price of the tenders. Despite the foregoing, if the integrity of at least one tender transmitted electronically could not be ascertained at the opening, such disclosure takes place instead at the time of the publication provided for in the fourth paragraph.

The public body publishes, within 4 business days, the result of the public opening in the electronic tendering system.

O.C. 531-2008, s. 11; I.N. 2016-01-01 (NCCP); O.C. 292-2016, s. 10.

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.

Despite the foregoing, where the tender documents provide for compliance tests, the tests are first carried out in respect of the goods proposed by the supplier who, in the absence of those tests, would be the successful tenderer. The tests are then carried out in respect of the goods proposed by the next supplier only if the goods proposed by the preceding supplier fail to pass the compliance tests and so forth until the tests are successful. However, in the case of a delivery order contract entered into with a number of suppliers, the compliance tests are carried out in respect of the goods proposed by all the suppliers who, except for those tests, would be retained.

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.

A tender received after the closing date and time for receiving tenders may not, for that sole reason, be considered non-compliant if the delay is attributable solely to the public body.

O.C. 531-2008, s. 12; O.C. 292-2016, s. 11; S.Q. 2018, c. 10, s. 15.

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

O.C. 531-2008, s. 13; O.C. 292-2016, s. 12.

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)  at the end of the tendering process, 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; O.C. 292-2016, s. 13.

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.0.1 TOTAL ACQUISITION COST

O.C. 292-2016, s. 14.

15.1.1. To determine the lowest price or the lowest adjusted price for the purpose of awarding a contract under section 13, 18, 22, 23 or 26.1, a public body may consider additional costs related to the acquisition of goods. Those additional costs are added to the tendered or adjusted prices, as applicable, in accordance with section 8 of Schedule 2, so as to establish the total acquisition cost for the public body.

Price adjustment made in accordance with the first paragraph must be based on quantifiable and measurable elements identified in the tender documents. Price adjustment must also be carried out after the filing of tenders according to the information contained in each tender.

For the purposes of this Regulation, the additional costs are the costs not included in the tendered price that would be borne by the public body during the useful life of the goods acquired. They may include installation, maintenance, support and training costs, as well as the costs of any other item deemed relevant by the public body in connection with the goods acquired.

O.C. 292-2016, s. 14.

15.1.2. Where the public body has considered additional costs in accordance with section 15.1.1 for the purpose of awarding the contract, the public body sends to each tenderer the value of the additional costs concerning the tenderer within 15 days of the contract awarding.

O.C. 292-2016, s. 14.

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, in respect of the goods to be acquired, submitted the lowest price, unless the supplier cannot fill the orders, in which case the other suppliers are solicited according to their respective rank for the same goods.

Such orders may, however, be awarded to any of the selected suppliers whose submitted price in respect of the goods to be acquired 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; O.C. 292-2016, s. 15.

18.1. A delivery order contract may allow the selected supplier to replace goods referred to in the contract by new goods provided that the new goods comply with the technical specifications required and provided that their price does not exceed the price of the replaced goods.

Where the delivery order contract is entered into with more than one supplier, each of them may reduce the price of the goods referred to in the contract or replace them in accordance with the first paragraph.

The public body must specify in the tender documents the conditions to be met to make such changes as well as the mechanism to inform the other selected suppliers of the changes made by a competing supplier.

For the purposes of section 18, the price of goods reduced by a supplier under the second paragraph becomes the price submitted by the supplier for the goods concerned.

O.C. 292-2016, s. 16.

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 as provided for in section 11, only the name of the suppliers, including the name of any supplier who transmitted electronically a tender whose integrity has not been ascertained, is then disclosed and the result of the opening is published in accordance with the fourth paragraph of that section.

O.C. 531-2008, s. 20; O.C. 292-2016, s. 17.

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.

Moreover, on the written request of a tenderer sent within 30 days after the communication made under the first paragraph, the public body must present to the tenderer the results of the tender evaluation for each criterion used to evaluate quality, and briefly set out the reasons justifying the fact that the tender was not accepted. That feedback must be provided within 30 days after the date of receipt of the tenderer’s request.

O.C. 531-2008, s. 26; O.C. 292-2016, s. 18.

DIVISION III CONTRACT AWARDED FOLLOWING A CALL FOR TENDERS INVOLVING 2 STAGES

O.C. 292-2016, s. 19.

26.1. Despite section 10, a public body may also use a call for tenders in 2 stages to award a supply contract. The second and third paragraphs of section 19 and sections 24 and 25 apply to such call for tenders.

The public body firsts selects suppliers by soliciting solely a quality demonstration in accordance with Schedule 1 or with sections 1 to 7 of Schedule 2. In the latter case, the tender documents must indicate the number of selected suppliers who will be invited to participate in the second stage.

The public body then invites the selected suppliers to submit a tender involving either only a price, or a quality demonstration and a price. In the first case, the public body awards the contract to the supplier who submitted the lower price; in the latter case, the public body applies the quality evaluation conditions in Schedule 2 and awards the contract to the supplier who submitted the lowest adjusted price.

O.C. 292-2016, s. 19.

26.2. Despite section 11, tenders submitted during the first stage are opened only in the presence of the secretary of the selection committee, or his or her representative, at the designated place and on the closing date and time fixed in the tender documents. The public body publishes in the electronic tendering system the names of the suppliers who participated in that stage within 4 business days following the public opening of the tenders filed at the second stage.

At the second stage, where the selected suppliers are invited to submit a tender including a quality demonstration and a price, the provisions of section 20 apply.

O.C. 292-2016, s. 19.

26.3. The public body informs each tenderer of the result of the quality evaluation of the tender for each of the stages including such evaluation in which the tenderer took part. Such communication takes place at the time of sending to the tenderers retained after the first stage an invitation to participate in the second stage or within 15 days of the contract awarding, as the case may be.

If Schedule 1 applies, the particulars sent to tenderers are

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

(2)  the names of the tenderers qualified for the second stage.

If Schedule 2 applies, the particulars sent to tenderers are

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

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

(3)  as the case may be, the name of the tenderers qualified for the second stage or the name, quality score and tendered price of the successful tenderer, and the resulting adjusted price.

Moreover, on the written request of a tenderer sent within 30 days after the communication made under the first paragraph, the public body must present to the tenderer the results of the tender evaluation for each criterion used to evaluate the quality, and briefly set out the reasons justifying the fact that the tender was not accepted. That feedback must be provided, as the case may be, within 30 days after the date of receipt of the tenderer’s request if the request was sent after the awarding of the contract, or within 30 days after the awarding of the contract if the request was sent before that date.

O.C. 292-2016, s. 19.

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

(Revoked)

O.C. 694-2009, s. 1; O.C. 292-2016, s. 20.

29.1. (Revoked).

O.C. 694-2009, s. 1; O.C. 432-2013, s. 7; O.C. 292-2016, s. 20.

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 specifying the filing deadline for complaints under section 21.0.4 of the Act; that deadline is determined, subject to the second paragraph, by adding to the date of the notice a period corresponding to half the time for receiving applications for certification but which may not, however,be less than 10 days;

(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.

The public body must ensure that there is a period of at least 4 business days between the certification application filing deadline and the complaint filing deadline.

The first, third and fourth paragraphs of section 9 and Division II.1 of Chapter II apply, with the necessary modifications, to the certification of goods.

O.C. 531-2008, s. 31; S.Q. 2017, c. 27, s. 234.

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 open only to the suppliers of certified goods.

O.C. 531-2008, s. 32; O.C. 292-2016, s. 21.

CHAPTER V.1 QUALIFICATION OF SUPPLIERS

S.Q. 2018, c. 10, s. 16.

32.1. When a public body uses a qualification process to qualify suppliers before issuing a call for tenders for a supply contract,

(1)  the qualification process must be preceded by a public notice to that effect on the electronic tendering system indicating, with the necessary modifications, the information required under subparagraphs 1, 2 and 4 to 6.1 of the second paragraph of section 4, except the period for receiving applications for qualification that may not be under 25 days following the date of publication of the public notice of qualification, the period of validity of the list of qualified suppliers and the means used to renew or cancel it or, if the period of validity is not specified, an indication of the method used to inform all interested persons of the time as of which that list will no longer be used;

(2)  the list of qualified suppliers must be published on the electronic tendering system and every supplier must be informed of its acceptance for entry on the list or the reason for refusal if entry is denied;

(3)  a public notice of qualification must be published again at least once a year inviting other suppliers to qualify during the period of validity of the list;

(4)  the public notice of qualification must remain accessible on the electronic tendering system for the entire period of validity of the list; and

(5)  a supplier may, at any time, apply for qualification, in which case the public body qualifies the supplier within a reasonable time.

The third paragraph of section 4, the first, third and fourth paragraphs of section 9 and Division II.1 of Chapter II apply, with the necessary modifications, to the qualification of suppliers.

S.Q. 2018, c. 10, s. 16.

32.2. When the public body evaluates the quality of applications for qualification, it sets up a selection committee in accordance with the second paragraph of section 24 and applies the evaluation conditions in Schedule 1 or in sections 1 to 7 of Schedule 2.

S.Q. 2018, c. 10, s. 16.

32.3. Every supply contract subsequent to the qualification of suppliers under section 32.1 that involves an expenditure equal to or above the public tender threshold must be awarded through a call for tenders open only to qualified suppliers.

S.Q. 2018, c. 10, s. 16.

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 CERTIFICATE FROM REVENU QUÉBEC

O.C. 353-2010, s. 1; O.C. 847-2011, s. 1; O.C. 847-2011, s. 1; S.Q. 2015, c. 8, s. 117.

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 a valid certificate from Revenu Québec.

O.C. 353-2010, s. 1; O.C. 847-2011, s. 1; S.Q. 2015, c. 8, s. 118.

37.2. The certificate from Revenu Québec is issued to every supplier who, on the date indicated in the certificate, 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; S.Q. 2015, c. 8, s. 119.

37.3. The certificate of a supplier is valid until the end of the three-month period following the month in which it was issued.

In addition, the certificate of the supplier must not have been issued after the tender closing date and time or, in the case of a contract entered into by mutual agreement, after the contract award date.

The supplier’s holding a valid certificate issued in accordance with the second paragraph is considered to be an eligibility requirement within the meaning of section 6.

O.C. 847-2011, s. 1; S.Q. 2015, c. 8, s. 120.

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

O.C. 847-2011, s. 1; S.Q. 2015, c. 8, s. 121.

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, the date of publication of the notice of intention and 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; S.Q. 2017, c. 27, s. 235.

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 and 3 to 5 of section 39.

O.C. 432-2013, s. 11; O.C. 292-2016, s. 22.

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 TERMS

O.C. 531-2008; O.C. 292-2016, s. 23.

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.

46.2. Section 9.2 does not apply to tenders transmitted electronically under a call for tenders for the conclusion of a supply contract by the Centre d’acquisitions gouvernementales where the documents related to the tendered price are in the form of a price list whose scope or layout does not make it possible to identify a total price.

Subparagraph 5.2 of the second paragraph of section 4, subparagraph 4 of the first paragraph of section 7 and section 10.1 apply to tenders referred to in the first paragraph, adapted as required.

O.C. 292-2016, s. 24; S.Q. 2017, c. 21, s. 95; S.Q. 2020, c. 2, s. 76.

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

2016

(O.C. 292-2016) SECTION 25.Despite the second paragraph of section 7 of the Regulation respecting certain supply contracts of public bodies (chapter C-65.1, r. 2), as amended by paragraph 2 of section 5 of this Regulation, the transmission, until 31 May 2019, of a same tender electronically and in paper form does not amount to filing more than one tender.

SECTION 26. Until 31 May 2019, when a supplier transmits, under a call for tenders, a same tender electronically and in paper form, the tender transmitted in paper form must be considered by the public body only if the public body cannot ascertain the integrity of the tender transmitted electronically at the opening of tenders, being understood that section 7.0.1 of the Regulation respecting certain supply contracts of public bodies, made by section 6 of this Regulation, does not apply in such case.

SECTION 27. Until 31 May 2019, the second sentence of the third paragraph of section 11 of the Regulation respecting certain supply contracts of public bodies, as amended by paragraph 2 of section 10 of this Regulation, applies only when a tender whose integrity could not be ascertained was not also transmitted in paper form.

SECTION 28. The provisions of sections 2 to 19, 21 and 24 to 27 apply only to calls for tenders for which a notice is published as of 1 June 2016.

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

S.Q. 2015, c. 8, ss. 117 to 121

O.C. 292-2016, 2016 G.O. 2, 1803

S.Q. 2017, c. 21, s. 95

S.Q. 2018, c. 10, ss. 12 to 16

S.Q. 2017, c. 27, ss. 231 to 235

S.Q. 2020, c. 2, s. 76