First Session, 48th

General Assembly

65 Elizabeth II,

BILL 46

AN ACT RESPECTING PROCUREMENT BY

PUBLIC BODIES

Received

and Read the First Time ................................................................

Second

Reading ............................................................................................

Committee .....................................................................................................

Third

Reading ...............................................................................................

Royal

Assent .................................................................................................

HONOURABLE EDDIE

JOYCE

Minister of Service

Newfoundland and Labrador

Ordered to be printed by

the Honourable House of Assembly

EXPLANATORY NOTE

This Bill would establish the

legislative framework for public procurement in the province.

A BILL

AN ACT RESPECTING PROCUREMENT BY PUBLIC

BODIES

Analysis

Short title

Definitions

Purpose

Labrador Inuit rights

Application

PART

PROCUREMENT

Procurement of commodities

Exemptions

Procurement of professional services

Co-ordination of purchasing

Management of procurement

Post award requirements

Supplier debriefing and complaint

Supplier performance

PART

PUBLIC PROCUREMENT AGENCY

Public Procurement Agency

Chief procurement officer

Powers, functions and duties of chief

procurement officer

Review by chief procurement officer

Review

Reports of the chief procurement officer

Acquisition of commodities

Purchases by other public bodies

PART

III

GENERAL

Reporting of award information

Agreements

Government bound

Procurement Advisory Council

No liability

Fees and forms

Regulations by Lieutenant-Governor in

Council

Regulations by minister

PART

CONSEQUENTIAL AMENDMENTS AND REPEAL

SNL2007 cE-11.01 Amdt.

SNL2016 cI-2.1 Amdt.

SNL2006 cR-7.1 Amdt.

SNL2008 cR-13.1 Amdt.

SNL1995 cW-12 Amdt.

Repeal

Commencement

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 Public

Procurement Act .

Definitions

2. In

this Act

(a) "agency" means the Public

Procurement Agency continued under

section 14 ;

(b) "best value" includes the best

balance of cost, quality, performance and support, as achieved through a

transparent, efficient and competitive procurement process using clear and fair

evaluation and selection criteria;

(c) "bid" means an offer from a

supplier, submitted in response to a call for bids, to supply commodities;

(d) "commodities"

means goods, services, public works and lease of space;

(e) "contractor" means a supplier that

has been awarded a contract by a public body;

(f) "electronic notification system"

means an internet website or linked websites through which information about procurement

is broadly and openly communicated;

(g) "framework" means the sum of this

Act and its regulations, and the policies that govern procurement of

commodities;

(h) "goods" means goods, chattels,

material, personal property, movable property and other physical objects of

every kind, including items required to be manufactured or on which a labour or

skill is required to be expended before, upon or after delivery to a public body;

(i) "group purchasing" means the

purchasing of commodities by 2 or more public bodies;

(j) "head of a public body" means

(

i) in the case of a department, the deputy

minister,

(ii) in the case of a public body referred to in

subparagraph (q)(iv), the council or local service district committee, and

(ii) in the case of other public bodies, the person

responsible for the administration of the public body;

(k) "joint purchasing agreement" means

an agreement entered into by the province and one or more other governments to

provide for joint acquisition of commodities required by public bodies;

(l) "lease of space" means a transfer of

the possession of space for a fixed period of time at a specified rent, and includes

a renewal of a lease;

(m) "minister" means the minister

appointed under the Executive Council Act

to administer this Act;

(n) "open call for bids" means a

publicly-advertised invitation to suppliers to submit a bid;

(o) "procurement" means the acquisition of

commodities or professional services by public bodies by any means, including

by purchase, rental or lease;

(p) "professional services" means the

following services required by a public body:

(

i) legal services, and

(ii) financial services relating to the provision

of credit and instruments of monetary policy;

(q) "public body" means

(

i) a department of the government of the

province, or in the case where procurement is on behalf of a department of the

government of the province by the agency, the agency,

(ii) a corporation in which not less than 90% of

the issued common shares are owned by the Crown,

(iii) a corporation established by

an Act under

which the corporation is made an agent of the Crown,

(iv) a municipality or local service district under

the Municipalities Act, 1999 , the

City of Mount Pearl established by the City

of Mount Pearl Act , the City of St. John's established by the City of St. John's Act and the City of

Corner Brook established by the City of

Corner Brook Act ,

(

v) a school board elected under the Schools Act, 1997 ,

(vi) an agency or authority of the province,

(vii) a regional health authority established under

the Regional Health Authorities Act ,

and

(viii) a board, commission, corporation, Royal

Commission or other body designated by the Lieutenant-Governor in Council as a

public body for the purpose of this Act;

(r) "public work" means the

construction, re-construction, extension, enlargement, repair, maintenance, improvement

and demolition of real property, including improvements to leased property;

(s) "real property" means land,

buildings, structures, improvements and fixtures erected or placed upon, in,

over or under land or affixed to land, and includes an interest in any of them;

(t) "services" means

(

i) all services incidental to the supply of goods

including the provision of transportation of all kinds,

(ii) printing and reproduction services,

(iii) accounting, land surveying and voice telephone

services,

(iv) engineering services,

(

v) architectural services,

(vi) banking services not captured by subparagraph

(p)(ii),

(vii) insurance services,

(viii) services that require the giving of an

opinion, creativity, the preparation of a design, or technical expertise except

those services defined in paragraph (p), and

(ix) all other services not considered to be

professional services; and

(u) "supplier" means an individual,

partnership, corporation, joint venture or other form of business organization

engaged in the lawful supply of commodities.

Purpose

(1) The

purpose of this Act is to establish a statutory framework which, through its

operation, enables public bodies to achieve best value, transparency and

accountability in procurement.

(2) For the purpose of the efficient, effective and

ethical procurement required by public bodies to carry out their mandates, public

bodies shall

(

a) promote the integrity and fairness of, and

public confidence in, procurement;

(

b) foster and encourage participation in procurement

by suppliers;

(

c) promote competition among suppliers in

procurement;

(

d) provide for the fair and equitable treatment

of all suppliers and contractors;

(

e) promote making information on procurement

publicly available; and

(

f) value diversity in procurement.

Labrador Inuit rights

4. This

Act and regulations made under this Act shall be read and applied in conjunction

with the Labrador Inuit Land Claims

Agreement Act and, where a provision of this Act or regulations under this

Act is inconsistent or conflicts with a provision, term or condition of the Labrador Inuit Land Claims Agreement Act ,

the provision, term or condition of the Labrador

Inuit Land Claims Agreement Act shall have precedence over the provision of

this Act or regulations made under this Act.

Application

(1) This

Act applies to procurement by public bodies, and with respect to the

corporation established under the Energy

Corporation Act and to the council established under the Research and Development Council Act ,

this Act applies to that corporation and that council and the subsidiaries of

them except as provided in those Acts.

(2) Where the province enters into a joint

purchasing agreement, the province may, notwithstanding this Act, acquire commodities

under the agreement and the provisions of the agreement with respect to the acquisition

of commodities shall apply to the acquisition instead of the provisions of this

Act.

PART I

PROCUREMENT

Procurement of commodities

6. Where

commodities are required by a public body, the public body shall ensure that

procurement is conducted and the commodities are acquired in accordance with the

framework.

Exemptions

7. Notwithstanding

section 6 , the Lieutenant-Governor in Council

may exempt procurement from the requirements of this Act where it is in the

best interest of the economic development of the province.

Procurement of

professional services

(1) The

Treasury Board may establish a policy for the procurement of professional

services by public bodies.

(2) Where professional services are required by a

public body, the public body shall ensure that procurement is conducted and the

professional services are acquired in accordance with the policy referred to in

subsection (1).

Co-ordination of

purchasing

(1) The

chief procurement officer may require that public bodies coordinate the group

purchasing of commodities or jointly purchase commodities where, in the opinion

of the chief procurement officer, it is in the best interest of efficiency to

do so.

(2) Notwithstanding subsection (1), upon

application by a public body, the minister may exempt that public body from a

requirement for group purchasing or joint purchasing.

Management of

procurement

(1) A head of a public body shall ensure that,

with respect to procurement of commodities,

(

a) procurement by the public body is managed and

documented in accordance with the purpose of this Act;

(

b) all procurement activities of the public body are

in clear support of the approved mandate and within the budgetary allocation of

the public body;

(

c) procurement by the public body is carried out

by staff of the public body with the required knowledge, skills and expertise

to work effectively within the framework;

(

d) management oversight, processes and controls

exist within the public body to ensure that procurement is carried out according

to the requirements of the framework;

(

e) appropriate action is taken where there is a

failure to comply with the framework;

(

f) an annual procurement plan is filed with the

agency when required by the regulations; and

(

g) the procurement activities of the public body

are published and reported in the manner prescribed in the regulations.

(2) A head of a public body shall ensure that

procurement of professional services by the public body is carried out in

accordance with the policy established by the Treasury Board under

section 8 .

Post award requirements

(1) A

public body shall establish clearly the requirements for fulfilling the terms

of a contract, and monitor the performance of the contractor throughout its

(2) A public body shall maintain complete records for

all phases of the process of procurement of commodities in the manner

prescribed in the regulations.

Supplier debriefing

and complaint

(1) An

unsuccessful bidder may request a meeting with the public body that issued the

open call for bids following the award of a contract to obtain information

concerning the reasons his or her bid was not successful and the public body

shall comply with the request and provide the information.

(2) A supplier may register a complaint respecting

a procurement process in which the supplier participated in the manner prescribed

in the regulations or the policy established by Treasury Board under

section 8 , as appropriate.

Supplier performance

13. A

supplier shall comply with the framework respecting supplier performance.

PART II

PUBLIC PROCUREMENT AGENCY

Public

Procurement Agency

(1) The

Government Purchasing Agency is continued under the name Public Procurement

Agency, and is a branch of the public service of the province.

(2) The agency shall be under the immediate

management and control of the chief procurement officer appointed under

section

15 .

(3) The employees required by the agency to carry

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

shall be appointed in the manner authorized by law.

Chief procurement

officer

(1) The

Lieutenant-Governor in Council shall appoint a person to be the chief procurement

officer.

(2) Unless he or she sooner resigns, dies or is

removed from office, the chief procurement officer shall hold office for 6

years from the date of his or her appointment, and may be reappointed.

(3) The chief procurement officer may be removed

for cause by the Lieutenant-Governor in Council following the passing by the

House of Assembly of a resolution requesting the Lieutenant-Governor in Council

to do so.

(4) The Lieutenant-Governor in Council may appoint

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

a vacancy in the office of the chief procurement officer or during the illness

or absence of the chief procurement officer and the person so appointed has for

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

chief procurement officer.

Powers, functions

and duties of chief procurement officer

(1) The

chief procurement officer shall

(

a) administer the agency;

(

b) supervise the acquisition of commodities under

sections 20 and 21 ;

(

c) develop and publish general policies for the

procurement of commodities for application by all public bodies;

(

d) establish an electronic notification system

for use by all public bodies;

(

e) publish information about procurement

activities;

(

f) maintain effective oversight of the procurement

activities of public bodies, particularly with respect to

(

i) supplier performance,

(ii) best value analysis and reporting, and

(iii) compliance monitoring and reporting;

(

g) provide advice to public bodies relating to

the

interpretation and application of the framework;

(

h) develop standardized procedures for the

procurement of commodities, documents and training programs for use by public

bodies;

(

i) ensure that public bodies have accessible and

effective supplier complaint procedures; and

(

j) do those other things and perform those other

duties that the minister may direct.

(2) The chief procurement officer shall, in the

development of the general policies respecting the procurement of commodities, apply

those social, economic and environmental priorities that the

Lieutenant-Governor in Council may direct.

Review by chief

procurement officer

(1) The

chief procurement officer shall review the practices of public bodies for

acquiring commodities and make recommendations where the chief procurement

officer considers it appropriate.

(2) A public body shall give the chief procurement

officer access to all records relating to procurement of commodities held by the

public body.

(3) Where the chief procurement officer makes

recommendations to a public body under subsection (1), the public body shall implement

the recommendations to the extent practicable.

(4) The chief procurement officer may, where it is

in the interest of efficiency to do so, designate a public body to procure

commodities on behalf of another public body.

Review

(1) The

chief procurement officer shall review the practices of public bodies for procuring

professional services and may make recommendations to those public bodies

respecting compliance with the policy established by the Treasury Board under

section

8 .

(2) A public body shall give the chief procurement

officer access to all records relating to the procurement of professional

services held by the public body.

(3) The chief procurement officer shall provide

the recommendations made under subsection (1) to the Treasury Board, and the

Treasury Board may direct the public body to comply with the policy established

by the Treasury Board under

section 8 .

Reports of the chief

procurement officer

(1) The

chief procurement officer shall provide to the minister the

information respecting procurement which the minister may request,

including information relating to specific procurements and the general conduct

of procurement.

(2) In addition to the information referred to in

subsection (1), the chief procurement officer shall provide to the minister

information respecting another expenditure of public money through procurement

which, in the opinion of the chief procurement officer, should be brought to

the attention of the minister.

Acquisition of commodities

20 .

(1) The agency shall

acquire by purchase or otherwise all commodities that are required by the

departments of the public service in accordance with the framework .

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

permit the acquisition of commodities otherwise than through the agency,

subject to this Act , where the chief

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

so, and it may limit its permission to specified commodities, to an amount or a

particular time period, or to particular departments.

(3) Notwithstanding subsection (1), the chief

procurement 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 commodities

on behalf of the agency in accordance with this Act.

(4) Where commodities 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

procurement officer may require.

Purchases by other

public bodies

21 .

(1) Where the chief

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

so, the agency shall acquire, by purchase or otherwise, all commodities that

are required by a public body that is not a department of the government and to

which public body the Lieutenant‑Governor in Council directs that this

section shall apply.

(2) Notwithstanding subsection (1), the agency

may, where the chief procurement officer is satisfied that it is in the

interest of efficiency to do so, permit the acquisition by a public body of

specified commodities, subject to this Act ,

and may limit its approval to an amount or to a particular time period.

(3) Notwithstanding subsection (1), the chief

procurement 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 commodities

on behalf of the agency in accordance with this Act .

(4) Where commodities 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 procurement officer

may prescribe.

PART III

GENERAL

Reporting of

award information

22. A

public body shall, within 30 days of an award being made under this Act and the

regulations, post the award information required by the regulations on the electronic

notification system.

Agreements

23. The

minister may enter into agreements respecting procurement of commodities, subject

to the Intergovernmental Affairs Act .

Government bound

24. The

government is bound by the actions of the agency and the chief procurement

officer acting within the scope of authority conferred by this Act.

Procurement Advisory

Council

(1) The

minister shall establish a Procurement Advisory Council which shall provide

advice and make recommendations to the minister respecting matters relating to

procurement and, in particular, how the purpose of this Act may best be

achieved.

(2) The chief procurement officer shall be the

chairperson of the Procurement Advisory Council.

(3) The members of the council shall be appointed

by the minister.

(4) The minister shall, by regulation, prescribe

(

a) the terms of reference for the council;

(

b) the composition of the council; and

(

c) the duties of the council.

No liability

An action does not lie against the minister, the chief procurement officer, the

agency, an employee of the agency, a public body, an employee of a public body or

other person acting in good faith in the execution of a duty imposed or a

decision made under the authority of this Act or the regulations.

Fees and forms

27. The

minister may set fees and establish forms for the purpose and administration of

this Act and the regulations.

Regulations by

Lieutenant-Governor in Council

28. The

Lieutenant-Governor in Council may make regulations

(

a) respecting the manner in which public bodies

procure commodities;

(

b) respecting when an open call for bids is not

required respecting the procurement of commodities;

(

c) respecting alternative procurement approaches

for the procurement of commodities;

(

d) respecting the manner in which public bodies

shall maintain records respecting procurement of commodities;

(

e) respecting when annual procurement plans shall

be required from public bodies, and the form and content of those plans;

(

f) respecting the manner in which bids are to be

evaluated;

(

g) respecting the manner in which contracts are

to be awarded;

(

h) establishing the processes to be followed for

the submitting and treatment of supplier complaints;

(

i) respecting supplier performance;

(

j) establishing monetary amounts at which an open

call for bids is required;

(

k) establishing monetary amounts below which

there is no requirement to issue an open call for bids;

(

l) governing the form and content of the

electronic notification system;

(

m) defining the scope, content and limits of policies

respecting the procurement of commodities that may be established by the chief

procurement officer;

(

n) defining the information about procurement activities

that shall be published;

(

o) establishing time periods for the required

publication of information;

(

p) defining a word or phrase not defined in this

Act; and

(

q) generally, to give effect to this Act.

Regulations by

minister

29. The

minister may make regulations respecting

(

a) the terms of reference for the Procurement

Advisory Council;

(

b) the composition of the Procurement Advisory

Council; and

(

c) the duties of the Procurement Advisory Council.

PART IV

CONSEQUENTIAL AMENDMENTS

AND REPEAL

SNL2007 cE-11.01

Amdt.

Section 17.1 of the Energy Corporation Act is repealed and the following substituted:

Application of Public

Procurement Act

17.1

(1) The

corporation or a subsidiary is exempt from the Public Procurement Act with respect to procurement in the following

areas:

(

a) energy and energy products;

(

b) where the corporation or a subsidiary is

acting in a strategic partnership, joint venture, or equity investment with

other public bodies or private sector entitites; or

(

c) for the purpose of meeting the requirements of

a benefit arrangement.

(2) With respect to procurement activities that

are exempt under paragraph (1)(

b) or (c), the corporation and a subsidiary

shall, every 6 months, report to the minister responsible for the

administration of this Act on their procurement activities and shall include a

summary of contracts entered into and the identities of suppliers to whom the

contracts have been awarded.

(3) The minister responsible for the

administration of this Act shall, upon receipt of a report under subsection

(2), send a copy of the report to the chief procurement officer appointed under

the Public Procurement Act , who shall

post a copy of it on the electronic notification system.

SNL2016 cI-2.1 Amdt.

31. The

Schedule to the Independent Appointments Commission Act is amended by adding

immediately after the line referring to " Pippy Park Commission Act " the words " Public Procurement Act , subsection 15(1)".

SNL2006 cR-7.1

Amdt.

32. Sections 17.1 to 17.3 of the Regional Health Authorities Ac t are repealed.

SNL2008 cR-13.1

Amdt.

Section 25 of the Research and Development Council Act is repealed and the following

substituted:

Application of Public

Procurement Act

(1) The

council or a subsidiary of the council is exempt from the Public Procurement Act respecting procurement for research and development

purposes not related to the daily operations of the council or a subsidiary of

the council.

(2) With regard to procurement activities that are

exempt under subsection (1), the council and a subsidiary of the council shall,

every 6 months, report to the minister on their procurement activities and

shall include a

summary of contracts entered into and the identity of suppliers

to whom the contracts have been awarded.

(3) The minister shall, upon receipt of a report

under subsection (2), send a copy of the report to the chief procurement officer

appointed under the Public Procurement Act ,

who shall post a copy of it on the electronic notification system.

SNL1995 cW-12

Amdt.

Part IV of the Works, Services and Transportation Act is repealed.

Repeal

35. The following Acts and regulations are

repealed:

(

a) the Government

Purchasing Agency Act ;

(

b) the Intergovernmental

Joint Purchasing Act ;

(

c) the

Public Tender Act ; and

(

d) the Public

Tender Regulations, 1998 , Newfoundland and

Labrador Regulation 103/98.

Commencement

(1) This Act, or a section, subsection,

paragraph or subparagraph of this Act, comes into force on a day or days to be

proclaimed by the Lieutenant-Governor in Council.

(2) Notwithstanding subsection (1), the

requirements of this Act respecting the establishment, operation and use of the

electronic notification system take effect on a day to be proclaimed by the Lieutenant-Governor

in Council.

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