First Session, 45th General Assembly

53 Elizabeth II, 2004

BILL 41

AN ACT TO AMEND THE GOVERNMENT PURCHASING AGENCY

Received and Read the First Time

Second Reading

Committee

Third Reading

Royal Assent

HONOURABLE DIANNE WHALEN

Minister of Government Services

Ordered to be printed by the Honourable House of Assembly

EXPLANATORY NOTES

This Bill would continue the

Government Purchasing Agency as an independent branch of the public service of

the province. At present the agency is a

division of the Department of Government Services.

The Bill would also provide for the

replacement of the Central Purchasing Authority by an advisory board appointed

by the chief operating officer of the agency.

Joint purchasing for government funded bodies would be the

responsibility of the agency.

The Bill would also amend the Public Tender Act to confer on the chief

operating officer of the agency the responsibility, presently residing with the

Minister of Government Services, for tabling, through the Speaker, the

notification required under the Act when a tender is awarded to a person other

than the preferred bidder, and when a public work is executed, space is leased

or goods and services are acquired in circumstances where a tender is not required.

In addition, the Bill would amend the

Public Tender Act to require tender

information to be provided by a government funded body to the Chief Operating

Officer of the Government Purchasing Agency who would then make it public on

request.

A BILL

AN ACT RESPECTING THE GOVERNMENT PURCHASING

AGENCY

Analysis

Short title

Definitions

Government Purchasing Agency

Chief operating officer

Acquisition of goods and services

Purchases by boards, etc.

Joint purchasing advisory board

Auditor general

Government bound

RSNL1990 cP-45 Amdt.

SNL1995 cW-12 Amdt.

Be it enacted by the Lieutenant-Governor and

House of Assembly in Legislative Session convened, as follows:

Short title

1. This

Act may be cited as the Government

Purchasing Agency Act .

Definitions

2. In

this Act

(a) "agency" means the Government

Purchasing Agency continued under

section 3 ;

(b) "amount" means the cost or price of

the goods and services, whether that cost or price is fixed or estimated;

(c) "auditor general" means the auditor

general appointed under the Auditor

General Act ;

(d) "chief operating officer" means the Chief

Operating Officer of the Government Purchasing Agency appointed under

section 4 ;

(e) "goods and services" means

(

i) goods, chattels, materials and personal

property of every kind, including goods required to be manufactured, or on

which or in relation to which a labour or skill is required to be expended

before, upon or after delivery to a government funded body,

(ii) the provision of transportation of all kinds,

(iii) printing and other similar reproduction, and

(iv) services as defined in the Public Tender Act;

(f) "government funded body" means a

government funded body as defined in the Public

Tender Act ; and

(g) "minister" means the minister

appointed under the Executive Council Act

to administer this Act.

Government Purchasing

Agency

3 .

(1) The Government

Purchasing Agency is continued as a branch of the public service of the

province.

(2) The agency shall be under the immediate

management and control of an officer to be known as the Chief Operating Officer

of the Government Purchasing Agency.

(3) The employees required by the agency to carry

out its powers, functions and duties, other than the chief operating officer,

shall be appointed in the manner authorized by law.

Chief operating

officer

4 .

(1) The Lieutenant‑Governor

in Council shall appoint a person to be the chief operating officer of the

agency.

(2) The chief operating officer shall hold office

during good behaviour but shall be removed from office by the Lieutenant‑Governor

in Council on the passing by the House of Assembly of a resolution requiring

the Lieutenant‑Governor in Council to so remove the officer.

(3) The salary of the chief operating officer

shall not be reduced without the assent of the House of Assembly.

(4) The chief operating officer shall report

directly to the minister.

(5) The Lieutenant-Governor in Council may appoint

a person to perform the duties of the chief operating officer in the event of a

vacancy in the office of the chief operating officer or during the illness or

absence of the chief operating officer and the person so appointed has for

those purposes the powers and shall perform all the functions and duties of the

chief operating officer.

Acquisition of

goods and services

5 .

(1) The agency shall

acquire by purchase or otherwise all goods and services that are required by

the departments of the public service in accordance with the Public Tender Act.

(2) Notwithstanding subsection (1), the agency may

permit the acquisition of goods and services otherwise than through the agency,

subject to the Public Tender Act, where

the chief operating officer is satisfied that it is in the interest of

efficiency to do so, and it may limit its permission to specified goods and

services, to an amount, or to certain departments.

(3) Notwithstanding subsection (1), the chief

operating officer, where satisfied that it is in the interest of efficiency to

do so, may delegate to a person in the public service the power to acquire

goods and services on behalf of the agency in accordance with the Public Tender Act.

(4) Where goods and services are acquired under

subsection (2) or (3), the agency shall be advised as soon as is practical and

shall be furnished with all details of the acquisition in a form that the chief

operating officer may require.

Purchases by

boards, etc.

6 .

(1) Where the chief

operating officer is satisfied that it is in the interest of efficiency to do

so, the agency shall acquire, by purchase or otherwise, all goods and services

that are required by a government funded body that is not a department of the

government and to which government funded body the Lieutenant‑Governor in

Council directs that this

section shall apply.

(2) Notwithstanding subsection (1), the agency

may, where the chief operating officer is satisfied that it is in the interest

of efficiency to do so, permit the acquisition, subject to the Public Tender Act, by a government

funded body of specified goods and services to a specified amount.

(3) Notwithstanding subsection (1), the chief

operating officer, where satisfied that it is in the interest of efficiency to

do so, may delegate to a person in the public service the power to acquire

goods and services on behalf of the agency in accordance with the Public Tender Act.

(4) Where goods and services are purchased under

subsection (2) or (3), the agency shall be advised as soon as is practical and

shall be furnished with all details of the purchase in a form that the chief

operating officer may prescribe.

Joint purchasing

advisory board

(1) The

chief operating officer may appoint a joint purchasing advisory board

consisting of representatives of government funded bodies for the purpose of

co-ordinating the purchase of goods and services required by the departments of

the government and other government funded bodies.

(2) Notwithstanding subsection (1), the Central

Purchasing Authority referred to in sections 44 and 45 of the Works, Services and Transportation Act

shall continue to operate as if it were a joint purchasing advisory board

appointed under subsection (1) until another joint purchasing advisory board is

appointed under that subsection.

Auditor general

8 . All records in the possession

of the agency shall be made available to the auditor general on the auditor

general's request.

Government bound

9 . The government is bound by the

actions of the agency and the chief operating officer acting within the scope

of authority conferred by this Act.

RSNL1990 cP-45

Amdt.

(1) Section 8 of the Public Tender Act is repealed and the following substituted:

Tender not

awarded to preferred bidder

(1) Where tenders are invited in accordance

with this Act and it appears to the government funded body inviting the tender

not to be expedient to award the contract to the preferred bidder, the head of

the government funded body shall report to and obtain the authority of the

Lieutenant‑Governor in Council before awarding the contract to a person

other than the preferred bidder.

(2) Notwithstanding subsection (1), a head of a

government funded body may, where authorized by the regulations to do so and as

prescribed, reject the preferred bidder and award the contract to a person

other than the preferred bidder.

(3) Where a contract is awarded under this Act by

a government funded body to a person other than a preferred bidder, the head of

the government funded body shall inform the Chief Operating Officer of the

Government Purchasing Agency, who shall send a

summary of the successful tender

together with a report including the reasons why the tender was so awarded, to

the Speaker of the House of Assembly for tabling,

(

a) if the House of Assembly is then in session,

within 30 days after receipt of notification of the awarding of the contract by

the government funded body; or

(

b) if the House of Assembly is not then in

session, within 30 days from the opening of the next session.

(4) This

section does not apply where a tender has

been invited but in relation to which no contract is awarded.

(5) The Chief Operating Officer of the Government

Purchasing Agency may review the grounds on which a government funded body

awarded a contract to a person other than a preferred bidder, including past

practices of the government funded body in making such an award, and may

express his or her opinion to the head of the government funded body with

respect to the sufficiency of the grounds for awarding the contract to a person

other than a preferred bidder.

(2) Section 10 of the Act is repealed and the

following substituted:

No tender

situations to be tabled

(1) Where a public work is executed or goods or

services are acquired or space is leased by a government funded body and a

tender is not required to be invited because of paragraph 3(2)(b), (

d) or (e),

(

i) or (j), 4(1)(

b) or (

d) or subsection 4(4) or (5), the head of the government

funded body shall inform the Chief Operating Officer of the Government

Purchasing Agency of the public work or goods or services or lease and the Chief

Operating Officer shall send a report indicating the public works so executed

or the goods or services so acquired or the space so leased and the reasons why

the tender was not invited, to the Speaker of the House of Assembly for

tabling,

(

a) if the House of Assembly is then in session,

within 30 days after receipt of notification of the awarding of the contract by

the government funded body; or

(

b) if the House of Assembly is not then in

session, within 30 days from the opening of the next session.

(2) The Chief Operating Officer of the Government

Purchasing Agency may review the grounds on which a government funded body

determined that a tender was not required to be invited, including past

practices of the government funded body in making such a determination, and may

express his or her opinion to the head of the government funded body with

respect to the sufficiency of the grounds for not inviting a tender.

Information

respecting a tender

10.1

(1) Where

a tender is invited by a government funded body, the government funded body

shall, at the time the tender is invited, provide the Chief Operating Officer

of the Government Purchasing Agency

(

a) with information respecting the tender

invitation in the form required by the chief operating officer; and

(

b) within 30 days of awarding a tender, with

information respecting the award of the tender including the name of the

successful bidder and the amount of the contract.

(2) The Chief Operating Officer of the Government

Purchasing Agency shall make available, upon request, the information submitted

under subsection (1).

Confirmation of compliance

10.2 The

head of a government funded body shall, with respect to an award of a contract

arising out of an invitation to tender, provide a confirmation to the Chief

Operating Officer of the Government Purchasing Agency, in the form he or she

may require, that the contract was awarded in accordance with this Act.

SNL1995 cW-12

Amdt.

11. Sections 46 to 54 of the Works, Services and Transportation Act are repealed.

Earl G. Tucker, Queen's Printer