Legal text for SACC item
Public Works and Government Services Canada Code of Conduct for Procurement General Information 01 Procurement Business Number 02 Standard Instructions, Clauses and Conditions 03 Definition of Offeror 04 Submission of Offers 05 Late Offers 06 Delayed Offers 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 Offer 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 To comply with the Code of Conduct for Procurement, offerors must respond to Requests for Standing Offers (RFSOs) in an honest, fair and comprehensive manner, accurately reflect their capacity to satisfy the requirements stipulated in the RFSO and resulting contract, submit offers and enter into contracts only if they will fulfill all obligations of the contract. To ensure fairness, openness and transparency in the bidding process, 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 is prohibited. By submitting an offer, the Offeror certifies that it meets the above requirements. Offerors further understand that the commission of certain offences may render them ineligible to be awarded a contract. By submitting an offer, the Offeror 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. General Information One method of supply used by Public Works and Government Services Canada (PWGSC) to satisfy the requirements of departments and agencies is to arrange with suppliers to submit a standing offer to provide goods, services or both during a specified period. Specific departments and agencies are then authorized by PWGSC to make call-ups against the standing offer detailing the exact quantities of goods or level of services they wish to order at a particular time, during the effective period of the standing offer in accordance with the predetermined conditions. The process normally starts with a RFSO that suppliers may obtain through the Government Electronic Tendering Service (GETS). A RFSO is an invitation to suppliers to provide PWGSC with a standing offer. The quantity of goods, level of services and estimated expenditure specified in the RFSO are only an approximation of requirements given in good faith. A RFSO does not commit PWGSC to authorize the utilization of a standing offer or to procure or contract for any goods, services or both. A standing offer is not a contract. The issuance by PWGSC of a Standing Offer and Call-up Authority to successful suppliers and to departments and agencies authorized to make call-ups does not constitute an agreement by Canada to order any or all of the goods, services or both offered. Departments and agencies may make one or several call-ups against a standing offer. 01 Procurement Business Number Canadian suppliers are required to have a Procurement Business Number (PBN) before issuance of a standing offer. 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 RFSO, standing offer and resulting contract(s) by number, date and title are incorporated by reference into and form part of the RFSO, standing offer and resulting contract(s) as though expressly set out in the RFSO, the standing offer and the resulting contract(s). 03 Definition of Offeror "Offeror" means the person or entity (or, in the case of a joint venture, the persons or entities) submitting a standing offer to offer goods, services or both under a call-up resulting from a standing offer. It does not include the parent, subsidiaries or other affiliates of the Offeror, or its subcontractors. 04 Submission of Offers 1. Canada requires that each offer, at closing time or upon request from the Standing Offer Authority, be signed by the Offeror or by an authorized representative of the Offeror. If an offer is submitted by a joint venture, it must be in accordance with section 16. 2. It is the Offeror's responsibility to: (a) obtain clarification of the requirements contained in the RFSO, if necessary, before submitting an offer; (b) prepare its offer in accordance with the instructions contained in the RFSO; (c) submit by closing date and time a signed and complete offer; (d) send its offer only to PWGSC Bid Receiving Unit specified on page 1 of the RFSO or to the address specified in the RFSO; (e) ensure that the Offeror's name, return address, RFSO number, and RFSO closing date and time are clearly visible on the envelope or the parcel(s) containing the offer; and, (f) provide a comprehensible and sufficiently detailed offer, including all requested pricing details, that will permit a complete evaluation in accordance with the criteria set out in the RFSO. 3. If Canada has provided offerors 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 RFSO revising any documents provided to offerors in multiple formats, Canada will not necessarily update all formats to reflect these revisions. It is the Offeror's responsibility to ensure that revisions made through any RFSO amendment issued through GETS are taken into account in the alternate formats it uses of RFSO documents. 4. Offers will remain open for acceptance for a period of not less than sixty (60) days from the closing date of the RFSO, unless specified otherwise in the RFSO. Canada reserves the right to seek an extension of the offer validity period from all responsive offerors in writing, within a minimum of three (3) days before the end of the offer validity period. If the extension is accepted by all responsive offerors, Canada will continue with the evaluation of the offers. If the extension is not accepted by all responsive offerors, Canada will, at its sole discretion, either continue with the evaluation of the offers of those who have accepted the extension or cancel the RFSO. 5. Offers and supporting information may be submitted in either English or French. 6. Offers received on or before the stipulated RFSO closing date and time will become the property of Canada and will not be returned. All offers 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 RFSO, Canada will evaluate only the documentation provided with an offeror's offer. 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 offer. 05 Late Offers PWGSC will return offers delivered after the stipulated RFSO closing date and time, unless they qualify as a delayed offer as described below. 06 Delayed Offers 1. An offer delivered to the specified Bid Receiving Unit after the closing date and time but before the standing offer issuance 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 offers. The only pieces of evidence relating to a delay in the CPC system that are acceptable to PWGSC are: (a) CPC cancellation date stamp; or (b) CPC Priority Courier bill of lading; or (c) CPC Xpresspost label that clearly indicates that the offer was mailed before the RFSO closing date. 2. For offers transmitted by facsimile, only the date, time and place of receipt recorded by PWGSC will be accepted as evidence of a delayed offer. 3. Misrouting, traffic volume, weather disturbances, labour disputes or any other causes for the late delivery of offers are not acceptable reasons for the offer to be accepted by PWGSC. 4. Postage meter imprints, whether imprinted by the Offeror, 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 RFSO, offers may be submitted by facsimile. The only acceptable facsimile number for responses to RFSOs issued by PWGSC headquarters is 819-997-9776. The facsimile number for responses to RFSOs issued by PWGSC regional offices is identified in the RFSO. 2. For offers transmitted by facsimile, Canada will not be responsible for any failure attributable to the transmission or receipt of the faxed offer including, but not limited to, the following: (a) receipt of garbled or incomplete offer; (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 offer; (e) failure of the Offeror to properly identify the offer; (f) illegibility of the offer; or (g) security of offer data. 3. An offer transmitted by facsimile will constitute the formal offer of the Offeror and must be submitted in accordance with section 04. Furthermore, the Offeror must send a written confirmation of the offer within two (2) working days after RFSO closing, unless specified otherwise in the RFSO. All documents confirming offers should bear the word "CONFIRMATION". 08 Customs Clearance It is the responsibility of the Offeror to allow sufficient time to obtain customs clearance, where required, before the RFSO 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 offer under section 06. 09 Legal Capacity The Offeror must have the legal capacity to contract. If the Offeror is a sole proprietorship, a partnership or a corporate body, the Offeror must provide, if requested by the Standing Offer 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 offerors submitting an offer as a joint venture. 10 Rights of Canada Canada reserves the right to: (a) reject any or all offers received in response to the RFSO; (b) enter into negotiations with offerors on any or all aspects of their offers; (c) authorize for utilization any offer in whole or in part without negotiations; (d) cancel the RFSO at any time; (e) reissue the RFSO; (f) if no responsive offers are received and the requirement is not substantially modified, reissue the RFSO by inviting only the offerors who submitted an offer to re-submit offers within a period designated by Canada; and, (g) negotiate with the sole responsive Offeror to ensure best value to Canada. 11 Vendor Performance 1. Canada may reject an offer where any of the following circumstances is present: (a) the Offeror, or any employee or subcontractor included as part of the offer, 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 Offeror is subject to a Vendor Performance Corrective Measure, under the Vendor Performance Policy, which renders the Offeror ineligible to submit an offer for the requirement; (c) an employee, or subcontractor included as part of the offer, is subject to a Vendor Performance Corrective Measure, under the Vendor Performance Policy, which would render that employee or subcontractor ineligible to submit an offer for 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 Offeror 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 Offeror, any of its employees or any subcontractor included as part of the offer; (iii) Canada has exercised its contractual remedies of suspension or termination for default with respect to a contract with the Offeror, any of its employees or any subcontractor included as part of the offer; (iv) Canada determines that the Offeror's performance on other contracts, including the efficiency and workmanship as well as the extent to which the Offeror 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 an offer pursuant to a provision of subsection 1, other than 1.(b), the Standing Offer Authority will so inform the Offeror and provide the Offeror ten (10) days within which to make representations, before making a final decision on the offer rejection. 12 Communications - Solicitation Period To ensure the integrity of the competitive RFSO process, enquiries and other communications regarding the RFSO must be directed only to the Standing Offer Authority identified in the RFSO. Failure to comply with the request may result in the offer being declared non-responsive. To ensure consistency and quality of information provided to offerors, significant enquiries received and the replies to such enquiries will be provided simultaneously to offerors to which the RFSO has been sent, without revealing the sources of the enquiries. 13 Price Justification In the event that the Offeror's offer is the sole responsive offer received, the Offeror 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 Offer Costs No payment will be made for costs incurred in the preparation and submission of an offer in response to the RFSO. Costs associated with preparing and submitting an offer as well as any costs incurred by the Offeror associated with the evaluation of the offer, are the sole responsibility of the Offeror. 15 Conduct of Evaluation 1. In conducting its evaluation of the offers, Canada may, but will have no obligation to, do the following: (a) seek clarification or verification from offerors regarding any or all information provided by them with respect to the RFSO; (b) contact any or all references supplied by offerors to verify and validate any information submitted by them; (c) request, before issuance of any standing offer, specific information with respect to offerors' legal status; (d) conduct a survey of offerors' facilities and/or examine their technical, managerial, and financial capabilities to determine if they are adequate to meet the requirements of the RFSO; (e) correct any error in the extended pricing of offers by using unit pricing and any error in quantities in offers to reflect the quantities stated in the RFSO; (f) verify any information provided by offerors through independent research, use of any government resources or by contacting third parties; (g) interview, at the sole costs of offerors, any offeror and/or any or all of the resources proposed by offerors to fulfill the requirement of the RFSO. 2. Offerors will have the number of days specified in the request by the Standing Offer Authority to comply with any request related to any of the above items. Failure to comply with the request may result in the offer 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 submit an offer together on a requirement. Offerors who submit an offer 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 offer, the Offeror must provide the information on request from the Standing Offer Authority. 3. The offer and any resulting standing offer 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 Standing Offer 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 RFSO and any resulting standing offer. If a standing offer is issued to a joint venture, all members of the joint venture will be jointly and severally or solidarily liable for the performance of any contract resulting from a call-up against the standing offer. 17 Conflict of Interest - Unfair Advantage 1. In order to protect the integrity of the procurement process, offerors are advised that Canada may reject an offer in the following circumstances: (a) if the Offeror, any of its subcontractors, any of their respective employees or former employees was involved in any manner in the preparation of the RFSO; (b) if the Offeror, any of its subcontractors, any of their respective employees or former employees had access to information related to the RFSO that was not available to other offerors and that would, in Canada's opinion, give the Offeror an unfair advantage. 2. The experience acquired by an offeror who is providing or has provided the goods and services described in the RFSO (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 offeror remains however subject to the criteria established above. 3. Where Canada intends to reject an offer under this section, the Standing Offer Authority will inform the Offeror and provide the Offeror an opportunity to make representations before making a final decision. Offerors who are in doubt about a particular situation should contact the Standing Offer Authority before the RFSO closing. By submitting an offer, the Offeror represents that it does not consider itself to be in conflict of interest nor to have an unfair advantage. The Offeror acknowledges that it is within Canada's sole discretion to determine whether a conflict of interest or unfair advantage exists. 18 Entire Requirement The RFSO contains all the requirements relating to the solicitation. Any other information or documentation provided to or obtained by an offeror from any source are not relevant. Offerors should not assume that practices used under previous contracts will continue, unless they are described in the RFSO. Offerors should also not assume that their existing capabilities meet the requirements of the RFSO simply because they have met previous requirements. 19 Further Information 1. For further information, offerors may contact the Standing Offer Authority identified in the RFSO. 2. For RFSOs issued out of PWGSC headquarters, enquiries concerning receipt of offers may be addressed to the Bid Receiving Unit, Procurement Operational Support Division, telephone 819-956-3370. For RFSOs issued out of PWGSC regional offices, enquiries concerning receipt of offers may be addressed to the Standing Offer Authority identified in the RFSO.