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Directive on Government Contracts, Including Real Property Leases, in the Nunavut Settlement Area (NSA)

Item Information

Purpose

PN-139R1 replaces and supersedes PN-139.

The purpose of Policy Notification (PN)-139R1 is to inform PWGSC Acquisitions Program (AP) contracting officers of the new clauses and templates drafted to support implementation of the Directive on Government Contracts, Including Real Property Leases, in the Nunavut Settlement Area (the Directive).

Effective date

This policy notification is effective immediately and supports the Directive that has been in effect since December 20, 2019. The Supply Manual (SM), Standard Acquisitions Clauses and Conditions (SACC) clauses, and Standard Procurement Templates have been updated.

Background

On December 20, 2019, the Treasury Board Directive on Government Contracts, Including Real Property Leases, in the Nunavut Settlement Area came into effect. The Directive was developed in close consultation with the Nunavut Tunngavik Incorporated (NTI), the Designated Inuit Organization (DIO) for the Agreement between the Inuit of the Nunavut Settlement Area and Her Majesty the Queen in right of Canada (Nunavut Agreement). The Directive supports the Government of Canada’s obligations under Article 24 (Government Contracts) of the Nunavut Agreement to provide reasonable support and assistance to Inuit firms to enable them to compete for government contracts, for the supply of goods, services, construction services and real property leases.

Application of the Directive

The requirements of the Directive apply to any government contract (as defined in Article 24.1.1 of the Nunavut Agreement), including real property leases, where the deliverable(s), or a portion of the deliverable(s) include final delivery or performance in or into the Nunavut Settlement Area (NSA).

The Directive applies to departments and agencies listed in Schedules I, I.1 and II of the Financial Administration Act (FAA), with the exception of the Canada Revenue Agency and to Commissions established pursuant to the Inquiries Act that are designated as departments for the purposes of the Financial Administration Act.

In the event of a conflict between the Directive and a requirement of any other Treasury Board or departmental policy, the Directive will take precedence.

Guide on Government Contracts in the Nunavut Settlement Area (the Guide)

As required in the Directive, a government-wide guide titled “Guide on Government Contracts in the Nunavut Settlement Area” has been developed to assist Contracting Authorities (CA) and Technical Authorities (TA) in fulfilling the obligations of the Directive. The Guide assumes a general understanding of Canada’s procurement process, and focuses advice on areas where the Directive represents a significant departure from the standard procurement approach. The Guide can be accessed here: Guide on Government Contracts in the Nunavut Settlement Area.

Expected results

The Directive and its implementation measures (including the Guide) reflect the expected results of Article 24 of the Nunavut Agreement which are, to the extent possible, as follows:

  • increased participation by Inuit firms in business opportunities in the NSA economy;
  • improved capacity of Inuit firms to compete for government contracts and real property leases in the NSA; and
  • employment of Inuit at a representative level in the NSA workforce.

It is also expected that the procurement obligations in the Nunavut Agreement will be more consistently applied across the federal government by following the provisions of the Guide.

Key policy measures of the Directive

  1. Inuit Firm Registry (IFR)

    As per the Nunavut Agreement, NTI is responsible for preparing and maintaining a registry of Inuit firms, and identifying the commodities and services those firms provide. This list is referred to as the Inuit Firm Registry (IFR). CAs and TAs must consult the IFR before soliciting or inviting bids for a government contract in the NSA. CAs and TAs are directed to rely on the IFR to confirm whether a bidder and/or their subcontractor(s) meets the definition of Inuit firm for the purposes of limited bidding, or for the award of points related to Inuit and Nunavut Benefits Criteria.

  2. Limiting bids to Inuit firms

    The Directive establishes a new mandatory policy measure to limit bidding on government contracts among Inuit firms on the IFR when there are two or more firms listed for that commodity or service.

  3. Inuit Benefits Criteria/Nunavut Benefits Criteria (IBC/NBC)

    The Directive requires that bid evaluation criteria (against which all bids are to be evaluated) related to Inuit and Nunavut Benefits be included in all competitive processes, depending on the estimated contract value. For procurements where the total estimated contract value is over $100,000 the Inuit and Nunavut Benefits criteria must be included in the solicitation, and for contracts under $100,000 best "efforts" must be used to include them when practicable, and in keeping with sound procurement management principles.

    The Inuit and Nunavut Benefits criteria are used alongside price and technical criteria in evaluating bids and selecting a successful bidder.

    Inuit Benefits Criteria are:

    • Inuit employment: to evaluate the employment of Inuit labour
    • Inuit training and skills development: to evaluate the undertaking of commitments, under the contract, with respect to training or skills development for Inuit
    • Inuit ownership (prime contractor and subcontractors): to evaluate whether the bidder is an Inuit firm on the IFR, and whether Inuit firms on the IFR will be engaged as subcontractor(s) in carrying out the government contract

    Nunavut Benefits Criteria are:

    • Location in the NSA: to evaluate whether the bidder or the subcontractor(s) have head offices, administrative offices or other facilities in the Nunavut Settlement Area
  4. Unbundling

    Unbundling is a process of analyzing the procurement to determine if there is an opportunity to invite bids by commodity groupings, or by breaking off a part of the requirement as a smaller contract package. CAs and TAs must determine whether the procurement’s operational requirements permit, where practicable and consistent with sound procurement management, the unbundling of a larger contract to permit for smaller and more specialized Inuit firms to submit bids.

  5. Mandatory documenting and reporting requirements
    • Documenting: Appendix C of the Directive requires that CAs and TAs document and justify certain decisions related to the procurement.
    • Reporting: Appendix D of the Directive requires that CAs and TAs complete and submit reports of government contracts valued at over $10,000 in the NSA.

Overview of changes

In support of PN-139R1, additions to the SACC Manual, modifications to the Standard Procurement Templates, and the Supply Manual have been made. These additions are meant to provide additional support for Contracting Authorities seeking to integrate the obligations of the Nunavut Directive within their procurements.

Strategic Policy Sector’s Indigenous Procurement Policy Division (IPPD) must be advised of procurements that will be taking place in the NSA and CAs may be required to provide file specific information to IPPD at any stage of their procurement regarding the implementation of the Directive.

There are supplementary templates (Inuit Benefits Plan (IBP), IBP Evaluation, and IBP Progress Report) referenced in the new SACC Manual clauses and Standard Procurement Templates that must be applied to procurements subject to the Directive. For each new procurement, the most up-to-date supplementary templates must be obtained from IPPD.

Procurements that are subject to the Directive and that will evaluate IBPs must also include an IBP Holdback clause to ensure that the IBP is enforced. For each new procurement, the most up-to-date IBP Holdback clause and guidance on its utilization must be obtained from IPPD. In the event that a CA would like to implement a holdback clause to enforce the delivery of Indigenous participation in a procurement not subject to the Nunavut Directive, they must seek legal advice prior to doing so.

Summary of revisions to the Supply Manual

The SM has been revised to include updated contact information for the Indigenous Procurement Policy Division (IPPD).

The SM has been updated to reflect this PN. For more details, refer to the Affected Supply Manual sections listed below.

Summary of additions to the Standard Acquisition Clauses and Conditions (SACC) Manual

New SACC Manual clauses have been developed in order to achieve the following:

  1. W0202T – Nunavut Directive
    To inform potential bidders that the Nunavut Directive applies to this procurement and to identify the objectives of the Directive.
  2. W0203T – Nunavut Directive: Inuit Benefits Plan (IBP)
    To inform bidders that their bids will be evaluated against rated-and-weighted IBP criteria related to Inuit/Nunavut benefits, and that performance and delivery will be monitored and enforced.
  3. W0204T – Nunavut Directive: Reporting Inuit and Nunavut Benefits – General Information
    To inform bidders that Canada expects that records related to Inuit and Nunavut Benefits delivery be compiled, maintained, and regularly reported upon.
  4. W0205T – Nunavut Directive: Limited to firms on the Inuit Firm Registry (IFR)
    To inform bidders that competition is limited among IFR firms.
  5. W0027T1 – Nunavut Directive: Highest combined rating of Inuit Benefits Plan commitment, technical merit, and price – Limited to Inuit Firm Registry
    To inform bidders of the basis of selection when the solicitation is limited to competition among IFR firms.
  6. W0027T2 – Nunavut Directive: Highest combined rating of Inuit Benefits Plan commitment, technical merit, and price – Not limited to Inuit Firm Registry
    To inform bidders of the basis of selection when the solicitation is NOT limited to competition among IFR firms.
  7. W0206T – Nunavut Directive: Registered on the Inuit Firm Registry (IFR)
    To inform bidders that they will have to be registered on the IFR.
  8. W0207C – Nunavut Directive: Statement of Work/Requirement
    To inform contractors that work must be performed in the manner committed to in the IBP.
  9. W0208C – Nunavut Directive: Disclosure of information
    To inform contractors that information contained in the IBP and IBP Progress Reports may be shared with 3rd parties.
  10. W0209C – Nunavut Directive: Inuit Benefits Plan Progress Report
    To inform contractors that they must compile records as to the achievement of IBP commitments and provide regular reports.
  11. W0210C – Nunavut Directive: Reporting unanticipated Inuit and Nunavut benefits
    To inform contractors that they will be expected to provide record of any unanticipated Inuit/Nunavut benefits that may occur.
  12. W0211C – Nunavut Directive: Third party independent professional
    To inform contractors that a third party independent professional may be engaged to confirm whether the contractor has met its contractual commitments regarding the IBP.
  13. W0212C – Nunavut Directive: Inuit Benefit Plan Deviations
    To inform contractors that they must inform Canada of any deviations from the IBP and provide a detailed explanation and propose resolutions, when requested.
  14. W0213C – Nunavut Directive: Canada’s Inuit Benefits Plan Authority
    To identify a representative of Canada to be the point of contact responsible for matters concerning the IBP.
  15. W0214C – Nunavut Directive: Contractor’s Inuit Benefits Plan Authority
    To identify a representative of the contractor to be the point of contact responsible for matters concerning the IBP.
  16. W0215C – Nunavut Directive: Maintaining registration on the Inuit Firm Registry (IFR)
    Informs contractors they must be on the IFR for the duration of the contract.
  17. W3020C – Nunavut Directive: Invoicing instructions – Maintenance services
    To provide invoicing instructions and inform contractors that invoices must be accompanied by reports related to IBP progress.
  18. W3022C – Nunavut Directive: Invoicing instructions - Progress payment claim - Supporting documentation required
    To provide invoicing instructions and inform contractors that invoices must be accompanied by reports related to IBP progress.
  19. W5001C – Nunavut Directive: Invoicing instructions
    To provide invoicing instructions and inform contractors that invoices must be accompanied by reports related to IBP progress.

The SACC Manual has been updated to reflect this PN. For more details, refer to the Affected SACC Manual sections listed below.

Summary of revisions to the Standard Procurement Templates

The High Complexity Bid Solicitation and Resulting Contract Template (HC) and Medium Complexity Bid Solicitation and Resulting Contract Template (MC) have been modified in an effort to integrate elements of the Nunavut Directive, including references to SACC Manual items and the use of limited bidding, Inuit Benefit Plans (IBP), and IBP progress reporting, into the standard procurement process.

The Standard Procurement Templates have been revised on GCPedia.

Contact information

To advise IPPD of a procurement that will be taking place in the NSA and for the most up-to-date version of the IBP Holdback clause and supplementary templates, or for general advice and guidance on procurements subject to the Directive, send an email to: TPSGC.PAContratsNunavut-APNunavutContracts.PWGSC@tpsgc-pwgsc.gc.ca. To expedite their requests, CAs should provide the basic file information identified in section 9.35.1.i.i “General information on Modern Treaties (Comprehensive Land Claim Agreements)” of the Supply Manual.

Questions about the Supply Manual (SM) can be emailed to: TPSGC.PASPSPublications-APSPSPublications.PWGSC@tpsgc-pwgsc.gc.ca.

Questions about the Standard Acquisition Clauses and Conditions (SACC) Manual or the Standard Procurement Templates can be emailed to: TPSGC.Outilsdapprovisionnement-ProcurementTools.PWGSC@tpsgc-pwgsc.gc.ca.

Affected SACC Manual sections