Legal text for SACC item
Public Works and Government Services Canada Code of Conduct for Procurement 01 Procurement Business Number 02 Standard Instructions, Clauses and Conditions 03 Definition of Bidder 04 Submission of Bids 05 Late Bids 06 Delayed Bids 07 Transmission by Facsimile 08 Customs Clearance 09 Legal Capacity 10 Rights of Canada 11 Vendor Performance 12 Communications - Solicitation Period 13 Price Justification 14 Bid Costs 15 Conduct of Evaluation 16 Joint Venture 17 Conflict of Interest - Unfair Advantage 18 Entire Requirement 19 Further Information Code of Conduct for Procurement The Code of Conduct for Procurement provides that bidders must respond to bid solicitations in an honest, fair and comprehensive manner, accurately reflect their capacity to satisfy the requirements stipulated in the bid solicitation and resulting contract, submit bids and enter into contracts only if they will fulfill all obligations of the contract. To ensure fairness, openness and transparency in the bidding process, the following activities are prohibited: (a) payment of a contingency fee by any party to a contract to a person to whom the Lobbyists Registration Act, R.S. 1985, c. 44 (4th Supplement) applies; (b) corruption and collusion in the bidding process for contracts for the provision of goods and services. By submitting a bid, the Bidder certifies that it meets the above requirements. Bidders further understand that the commission of certain offences may render them ineligible to be awarded a contract. By submitting a bid, the Bidder declares that it has not committed an offence under section 121 (Frauds on the government and Contractor subscribing to election fund), section 124 (Selling or Purchasing Office), section 380 (Fraud committed against Her Majesty) or section 418 (Selling defective stores to Her Majesty) of the Criminal Code of Canada, or under paragraph 80(1)(d) (False entry, certificate or return) subsection 80(2) (Fraud against Her Majesty) or Section 154.01 (Fraud against Her Majesty) of the Financial Administration Act. 01 Procurement Business Number Canadian suppliers are required to have a Procurement Business Number (PBN) before contract award. Suppliers may register for a PBN in the Supplier Registration Information service on line at the Business Access Canada Website at: http://contractscanada.gc.ca. For non-Internet registration, suppliers may contact the Business Access Canada InfoLine at 1-800-811-1148 to obtain the telephone number of the nearest Supplier Registration Agent. 02 Standard Instructions, Clauses and Conditions Pursuant to the Department of Public Works and Government Services Act, S.C. 1996, c.16, the instructions, clauses and conditions identified in the bid solicitation and resulting contract by number, date, and title are incorporated by reference into and form part of the bid solicitation and resulting contract as though expressly set out in the bid solicitation and resulting contract. 03 Definition of Bidder "Bidder" means the person or entity (or, in the case of a joint venture, the persons or entities) submitting a bid to perform a contract for goods, services or both. It does not include the parent, subsidiaries or other affiliates of the Bidder, or its subcontractors. 04 Submission of Bids 1. Canada requires that each bid, at closing time or upon request from the Contracting Authority, be signed by the Bidder or by an authorized representative of the Bidder. 2. It is the Bidder's responsibility to: (a) obtain clarification of the requirements contained in the bid solicitation, if necessary, before submitting a bid; (b) prepare its bid in accordance with the instructions contained in the bid solicitation; (c) submit by closing date and time a complete bid; (d) send its bid only to Public Works and Government Services Canada (PWGSC) Bid Receiving Unit specified on page 1 of the bid solicitation or to the address specified in the bid solicitation; (e) ensure that the Bidder's name, return address, the bid solicitation number, and bid solicitation closing date and time are clearly visible on the envelope or the parcel(s) containing the bid; and, (f) provide a comprehensible and sufficiently detailed bid, including all requested pricing details, that will permit a complete evaluation in accordance with the criteria set out in the bid solicitation. 3. If Canada has provided bidders with multiple formats of a document (for example, a document may be downloaded through the Government Electronic Tendering Service (GETS) but may also be made available on CD-ROM through GETS, the format downloaded through GETS will take precedence. If Canada posts an amendment to the bid solicitation revising any documents provided to bidders in multiple formats, Canada will not necessarily update all formats to reflect these revisions. It is the Bidder's responsibility to ensure that revisions made through any bid solicitation amendment issued through GETS are taken into account in the alternate formats it uses of bid solicitation documents. 4. Bids will remain open for acceptance for a period of not less than sixty (60) days from the closing date of the bid solicitation, unless specified otherwise in the bid solicitation. Canada reserves the right to seek an extension of the bid validity period from all responsive bidders in writing, within a minimum of three (3) days before the end of the bid validity period. If the extension is accepted by all responsive bidders, Canada will continue with the evaluation of the bids. If the extension is not accepted by all responsive bidders, Canada will, at its sole discretion, either continue with the evaluation of the bids of those who have accepted the extension or cancel the solicitation. 5. Bid documents and supporting information may be submitted in either English or French. 6. Bids received on or before the stipulated bid solicitation closing date and time will become the property of Canada and will not be returned. All bids will be treated as confidential, subject to the provisions of the Access to Information Act, R.S. 1985, c. A-1 and the Privacy Act, R.S. 1985, c. P-21. 7. Unless specified otherwise in the bid solicitation, Canada will evaluate only the documentation provided with a bidder's bid. Canada will not evaluate information such as references to Website addresses where additional information can be found, or technical manuals or brochures not submitted with the bid. 05 Late Bids PWGSC will return bids delivered after the stipulated bid solicitation closing date and time, unless they qualify as a delayed bid as described below. 06 Delayed Bids 1. A bid delivered to the specified Bid Receiving Unit after the closing date and time but before the contract award date may be considered, provided the delay can be proven to have been due solely to a delay in delivery that can be attributed to the Canada Post Corporation (CPC) (or national equivalent of a foreign country). Purolator Inc. is not considered to be part of CPC for the purposes of delayed bids. The only pieces of evidence relating to a delay in the CPC system that are acceptable to PWGSC are: (a) a CPC cancellation date stamp; or (b) a CPC Priority Courier bill of lading; or (c) a CPC Xpresspost label that clearly indicates that the bid was mailed before the bid closing date. 2. For bids transmitted by facsimile, only the date, time and place of receipt recorded by PWGSC will be accepted as evidence of a delayed bid. 3. Misrouting, traffic volume, weather disturbances, labour disputes or any other causes for the late delivery of bids are not acceptable reasons for the bid to be accepted by PWGSC. 4. Postage meter imprints, whether imprinted by the Bidder, the CPC or the postal authority outside Canada, are not acceptable as proof of timely mailing. 07 Transmission by Facsimile 1. Unless specified otherwise in the bid solicitation, bids may be submitted by facsimile. The only acceptable facsimile number for responses to bid solicitations issued by PWGSC headquarters is 819-997-9776. The facsimile number for responses to bid solicitations issued by PWGSC regional offices is identified in the bid solicitation. 2. For bids transmitted by facsimile, Canada will not be responsible for any failure attributable to the transmission or receipt of the faxed bid including, but not limited to, the following: (a) receipt of garbled or incomplete bid; (b) availability or condition of the receiving facsimile equipment; (c) incompatibility between the sending and receiving equipment; (d) delay in transmission or receipt of the bid; (e) failure of the Bidder to properly identify the bid; (f) illegibility of the bid; or (g) security of bid data. 3. A bid transmitted by facsimile constitutes the formal bid of the Bidder and must be in accordance with section 04. Furthermore, the Bidder must send a written confirmation of the bid within two (2) working days after bid closing, unless specified otherwise in the bid solicitation. All documents confirming bids should bear the word "CONFIRMATION". 08 Customs Clearance It is the responsibility of the Bidder to allow sufficient time to obtain customs clearance, where required, before the bid closing date and time. Delays related to the obtaining of customs clearance cannot be construed as "undue delay in the mail" and will not be accepted as a delayed bid under section 06. 09 Legal Capacity The Bidder must have the legal capacity to contract. If the Bidder is a sole proprietorship, a partnership or a corporate body, the Bidder must provide, if requested by the Contracting Authority, a statement and any requested supporting documentation indicating the laws under which it is registered or incorporated together with the registered or corporate name and place of business. This also applies to bidders submitting a bid as a joint venture. 10 Rights of Canada Canada reserves the right to: (a) reject any or all bids received in response to the bid solicitation; (b) enter into negotiations with bidders on any or all aspects of their bids; (c) accept any bid in whole or in part without negotiations; (d) cancel the bid solicitation at any time; (e) reissue the bid solicitation; (f) if no responsive bids are received and the requirement is not substantially modified, reissue the bid solicitation by inviting only the bidders who bid to re-submit bids within a period designated by Canada; and, (g) negotiate with the sole responsive Bidder to ensure best value to Canada. 11 Vendor Performance 1. Canada may reject a bid where any of the following circumstances is present: (a) the Bidder, or any employee or subcontractor included as part of the bid, has been convicted under Section 121 (Frauds on the government & Contractor subscribing to election fund), Section 124 (Selling or purchasing office), Section 380 ( Fraud committed against Her Majesty) or Section 418 (Selling defective stores to Her Majesty) of the Criminal Code or under paragraph 80(1)(d) (False entry, certificate or return) subsection 80(2) (Fraud against Her Majesty) or Section 154.01 (Fraud against Her Majesty) of the Financial Administration Act. (b) the Bidder is subject to a Vendor Performance Corrective Measure, under the Vendor Performance Policy, which renders the Bidder ineligible to bid on the requirement; (c) an employee, or subcontractor included as part of the bid, is subject to a Vendor Performance Corrective Measure, under the Vendor Performance Policy, which would render that employee or subcontractor ineligible to bid on the requirement, or the portion of the requirement the employee or subcontractor is to perform; (d) with respect to current or prior transactions with the Government of Canada (i) the Bidder is bankrupt or where, for whatever reason, its activities are rendered inoperable for an extended period; (ii) evidence, satisfactory to Canada, of fraud, bribery, fraudulent misrepresentation or failure to comply with any law protecting individuals against any manner of discrimination, has been received with respect to the Bidder, any of its employees or any subcontractor included as part of the bid; (iii) Canada has exercised its contractual remedies of suspension or termination for default with respect to a contract with the Bidder, any of its employees or any subcontractor included as part of the bid; (iv) Canada determines that the Bidder's performance on other contracts, including the efficiency and workmanship as well as the extent to which the Bidder executed the work in accordance with contractual clauses and conditions, is sufficiently poor to jeopardize the successful completion of the requirement being bid on. 2. Where Canada intends to reject a bid pursuant to a provision of subsection 1, other than 1.(b), the Contracting Authority will so inform the Bidder and provide the Bidder ten (10) days within which to make representations, before making a final decision on the bid rejection. 12 Communications - Solicitation Period To ensure the integrity of the competitive bid process, enquiries and other communications regarding the bid solicitation must be directed only to the Contracting Authority identified in the bid solicitation. Failure to comply with the request may result in the bid being declared non-responsive. To ensure consistency and quality of information provided to bidders, significant enquiries received and the replies to such enquiries will be provided simultaneously to bidders to which the bid solicitation has been sent, without revealing the sources of the enquiries. 13 Price Justification In the event that the Bidder's bid is the sole responsive bid received, the Bidder must provide, on Canada's request, one or more of the following price justification: (a) a current published price list indicating the percentage discount available to Canada; or (b) a copy of paid invoices for the like quality and quantity of the goods, services or both sold to other customers; or (c) a price breakdown showing the cost of direct labour, direct materials, purchased items, engineering and plant overheads, general and administrative overhead, transportation, etc., and profit; or (d) price or rate certifications; or (e) any other supporting documentation as requested by Canada. 14 Bid Costs No payment will be made for costs incurred in the preparation and submission of a bid in response to the bid solicitation. Costs associated with preparing and submitting a bid, as well as any costs incurred by the Bidder associated with the evaluation of the bid, are the sole responsibility of the Bidder. 15 Conduct of Evaluation 1. In conducting its evaluation of the bids, Canada may, but will have no obligation to, do the following: (a) seek clarification or verification from bidders regarding any or all information provided by them with respect to the bid solicitation; (b) contact any or all references supplied by bidders to verify and validate any information submitted by them; (c) request, before award of any contract, specific information with respect to bidders' legal status; (d) conduct a survey of bidders' facilities and/or examine their technical, managerial, and financial capabilities to determine if they are adequate to meet the requirements of the bid solicitation; (e) correct any error in the extended pricing of bids by using unit pricing and any error in quantities in bids to reflect the quantities stated in the bid solicitation; (f) verify any information provided by bidders through independent research, use of any government resources or by contacting third parties; (g) interview, at the sole costs of bidders, any bidder and/or any or all of the resources proposed by bidders to fulfill the requirement of the bid solicitation. 2. Bidders will have the number of days specified in the request by the Contracting Authority to comply with any request related to any of the above items. Failure to comply with the request may result in the bid being declared non-responsive. 16 Joint Venture 1. A joint venture is an association of two or more parties who combine their money, property, knowledge, expertise or other resources in a single joint business enterprise, sometimes referred as a consortium, to bid together on a requirement. Bidders who bid as a joint venture must indicate clearly that it is a joint venture and provide the following information: (a) the name of each member of the joint venture; (b) the Procurement Business Number of each member of the joint venture; (c) the name of the representative of the joint venture, i.e. the member chosen by the other members to act on their behalf, if applicable; (d) the name of the joint venture, if applicable. 2. If the information is not clearly provided in the bid, the Bidder must provide the information on request from the Contracting Authority. 3. The bid and any resulting contract must be signed by all the members of the joint venture unless one member has been appointed to act on behalf of all members of the joint venture. The Contracting Authority may, at any time, require each member of the joint venture to confirm that the representative has been appointed with full authority to act as its representative for the purposes of the bid solicitation and any resulting contract. If a contract is awarded to a joint venture, all members of the joint venture will be jointly and severally or solidarily liable for the performance of any resulting contract. 17 Conflict of Interest - Unfair Advantage 1. In order to protect the integrity of the procurement process, bidders are advised that Canada may reject a bid in the following circumstances: (a) if the Bidder, any of its subcontractors, any of their respective employees or former employees was involved in any manner in the preparation of the bid solicitation; (b) if the Bidder, any of its subcontractors, any of their respective employees or former employees had access to information related to the bid solicitation that was not available to other bidders and that would, in Canada's opinion, give the Bidder an unfair advantage. 2. The experience acquired by a bidder who is providing or has provided the goods and services described in the bid solicitation (or similar goods or services) will not, in itself, be considered by Canada as conferring an unfair advantage or creating a conflict of interest. This bidder remains however subject to the criteria established above. 3. Where Canada intends to reject a bid under this section, the Contracting Authority will inform the Bidder and provide the Bidder an opportunity to make representations before making a final decision. Bidders who are in doubt about a particular situation should contact the Contracting Authority before bid closing. By submitting a bid, the Bidder represents that it does not consider itself to be in conflict of interest nor to have an unfair advantage. The Bidder acknowledges that it is within Canada's sole discretion to determine whether a conflict of interest or unfair advantage exists. 18 Entire Requirement The bid solicitation documents contain all the requirements relating to the solicitation. Any other information or documentation provided to or obtained by a bidder from any source are not relevant. Bidders should not assume that practices used under previous contracts will continue, unless they are described in the bid solicitation. Bidders should also not assume that their existing capabilities meet the requirements of the bid solicitation simply because they have met previous requirements. 19 Further Information 1. For further information, bidders may contact the Contracting Authority identified in the bid solicitation. 2. For bid solicitations issued out of PWGSC headquarters, enquiries concerning receipt of bids may be addressed to the Bid Receiving Unit, Procurement Operational Support Division, telephone 819-956-3370. For bid solicitations issued out of PWGSC regional offices, enquiries concerning receipt of bids may be addressed to the Contracting Authority identified in the bid solicitation.