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 Supplier 04 Submission of Arrangements 05 Late Arrangements 06 Delayed Arrangements 07 Transmission by Facsimile 08 Customs Clearance 09 Legal Capacity 10 Rights of Canada 11 Vendor Performance 12 Communications - Solicitation Period 13 Arrangement Costs 14 Conduct of Evaluation 15 Joint Venture 16 Conflict of Interest - Unfair Advantage 17 Entire Requirement 18 Further Information Code of Conduct for Procurement To comply with the Code of Conduct for Procurement, suppliers must respond to Requests for Supply Arrangements (RFSAs) in an honest, fair and comprehensive manner, accurately reflect their capacity to satisfy the requirements stipulated in the RFSA and resulting supply arrangement, 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 an arrangement, the Supplier certifies that it meets the above requirements. Suppliers further understand that the commission of certain offences may render them ineligible to be awarded a contract. By submitting an arrangement, the Supplier declares that it has never been convicted of 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 A supply arrangement is a method of supply used by PWGSC to procure goods and services. A supply arrangement is an arrangement between Canada and pre-qualified suppliers that allows departments and agencies to solicit bids from a pool of pre-qualified suppliers for specific requirements within the scope of a supply arrangement. A supply arrangement is not a contract for the provision of the goods and services described in it and neither party is legally bound as a result of signing a supply arrangement alone. The intent of a supply arrangement is to establish a framework to permit expeditious processing of individual bid solicitations which result in legally binding contracts for the goods and services described in those bid solicitations. RFSAs are posted on the Government Electronic Tendering Service (GETS) and suppliers who are interested in responding to individual bid solicitations issued under a supply arrangement framework are invited to submit an arrangement to become pre-qualified suppliers. The list of pre-qualified suppliers will be used as a source list for future procurements and only suppliers who are pre-qualified at the time individual bid solicitations are issued will be eligible to bid. It will however be possible for suppliers who were not successful to qualify during the period of a supply arrangement in accordance with the process described in the RFSA. New suppliers will also be able to qualify as RFSAs will be posted on GETS from time to time as stated in the RFSA. Supply arrangements include a set of predetermined conditions that will apply to subsequent bid solicitations and contracts. Supply arrangements may include ceiling prices which may be lowered based on an actual requirement or scope of work described in a bid solicitation. 01 Procurement Business Number Canadian suppliers are required to have a Procurement Business Number (PBN) before issuance of a supply arrangement. Suppliers may register for a PBN in the Supplier Registration Information service on line at the Business Access Canada Website. 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 RFSA and resulting supply arrangement by number, date and title are incorporated by reference into and form part of the RFSA and supply arrangement as though expressly set out in the RFSA and resulting supply arrangement. 03 Definition of Supplier "Supplier" means the person or entity (or, in the case of a joint venture, the persons or entities) submitting a supply arrangement. It does not include the parent, subsidiaries or other affiliates of the Supplier, or its subcontractors. 04 Submission of Arrangements 1. Canada requires that each arrangement, at closing date and time or upon request from the Supply Arrangement Authority, be signed by the Supplier or by an authorized representative of the Supplier. If an arrangement is submitted by a joint venture, it must be in accordance with section 16. 2. It is the Supplier's responsibility to: (a) obtain clarification of the requirements contained in the RFSA, if necessary, before submitting an arrangement; (b) prepare the arrangement in accordance with the instructions contained in the RFSA; (c) submit by closing date and time a complete arrangement; (d) send the arrangement only to PWGSC Bid Receiving Unit specified on page 1 of the RFSA or to the address specified in the RFSA; (e) ensure that the Supplier's name, return address, RFSA number, and RFSA closing date and time are clearly visible on the envelope or the parcel(s) containing the arrangement; and, (f) provide a comprehensible and sufficiently detailed arrangement, including all requested pricing details, that will permit a complete evaluation in accordance with the criteria set out in the RFSA. 3. If Canada has provided suppliers 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 RFSA revising any documents provided to suppliers in multiple formats, Canada will not necessarily update all formats to reflect these revisions. It is the Supplier's responsibility to ensure that revisions made through any RFSA amendment issued through GETS are taken into account in the alternate formats it uses of RFSA documents. 4. Arrangements will remain open for acceptance for a period of not less than sixty (60) days from the closing date of the RFSA, unless specified otherwise in the RFSA. Canada reserves the right to seek an extension of the arrangement validity period from all responsive suppliers in writing, within a minimum of three (3) days before the end of the arrangement validity period. If the extension is accepted by all responsive suppliers, Canada will continue with the evaluation of the arrangements. If the extension is not accepted by all responsive suppliers, Canada will, at its sole discretion, either continue with the evaluation of the arrangements of those who have accepted the extension or cancel the RFSA. 5. Arrangements and supporting information may be submitted in either English or French. 6. Arrangements received on or before the stipulated RFSA closing date and time will become the property of Canada and will not be returned. All arrangements 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 RFSA, Canada will evaluate only the documentation provided with the arrangement. 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 arrangement. 05 Late Arrangements PWGSC will return arrangements delivered after the stipulated RFSA closing date and time, unless they qualify as a delayed arrangement as described below. 06 Delayed Arrangements 1. An arrangement delivered to the specified bid receiving unit after the closing date and time but before the supply arrangement 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 arrangements. 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 arrangement was mailed before the RFSA closing date. 2. For arrangements transmitted by facsimile, only the date, time and place of receipt recorded by PWGSC will be accepted as evidence of a delayed arrangement. 3. Misrouting, traffic volume, weather disturbances, labour disputes or any other causes for the late delivery of arrangements are not acceptable reasons for the arrangement to be accepted by PWGSC. 4. Postage meter imprints, whether imprinted by the Supplier, 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 RFSA, arrangements may be submitted by facsimile. The only acceptable facsimile number for responses to RFSAs issued by PWGSC headquarters is 819-997-9776. The facsimile number for responses to RFSAs issued by PWGSC regional offices is identified in the RFSA. 2. For arrangements transmitted by facsimile, Canada will not be responsible for any failure attributable to the transmission or receipt of the faxed arrangement including, but not limited to, the following: (a) receipt of garbled or incomplete arrangement; (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 arrangement; (e) failure of the Supplier to properly identify the arrangement; (f) illegibility of the arrangement; or (g) security of arrangement data. 3. An arrangement transmitted by facsimile will constitute the formal arrangement of the Supplier and must be submitted in accordance with section 04. Furthermore, the Supplier must send a written confirmation of the arrangement within two (2) working days after RFSA closing, unless specified otherwise in the RFSA. All documents confirming arrangements should bear the word "CONFIRMATION". 08 Customs Clearance It is the responsibility of the Supplier to allow sufficient time to obtain customs clearance, where required, before the RFSA 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 arrangement under section 06. 09 Legal Capacity The Supplier must have the legal capacity to contract. If the Supplier is a sole proprietorship, a partnership or a corporate body, the Supplier must provide, if requested by the Supply Arrangement 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 suppliers submitting an arrangement as a joint venture. 10 Rights of Canada Canada reserves the right to: (a) reject any or all arrangements received in response to the RFSA; (b) cancel the RFSA at any time; (c) reissue the RFSA; (d) if no responsive arrangements are received and the requirement is not substantially modified, reissue the RFSA by inviting only the suppliers who submitted an arrangement to re-submit arrangements within a period designated by Canada; and (e) issue RFSAs and supply arrangements to pre-qualified suppliers throughout the entire period of the supply arrangement. 11 Vendor Performance 1. Canada may reject an arrangement where any of the following circumstances is present: (a) the Supplier, or any employee or subcontractor included as part of the arrangement, 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 Supplier is subject to a Vendor Performance Corrective Measure, under the Vendor Performance Policy, which renders the Supplier ineligible to submit an arrangement for the requirement; (c) an employee, or subcontractor included as part of the arrangement, is subject to a Vendor Performance Corrective Measure, under the Vendor Performance Policy, which would render that employee or subcontractor ineligible to submit an arrangement for the requirement, or the portion of the requirement the employee or subcontractor is to perform; (d) with respect to current or previous transactions with the Government of Canada (i) the Supplier 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 Supplier, any of its employees or any subcontractor included as part of the arrangement; (iii) Canada has exercised its contractual remedies of suspension or termination for default with respect to a contract with the Supplier, any of its employees or any subcontractor included as part of the arrangement; (iv) Canada determines that the Supplier's performance on other contracts, including the efficiency and workmanship as well as the extent to which the Supplier performed the Work in accordance with contractual clauses and conditions, is sufficiently poor to jeopardize the successful completion of any requirement to be bid on. 2. Where Canada intends to reject an arrangement pursuant to a provision of subsection 1, other than 1.(b), the Supply Arrangement Authority will so inform the Supplier and provide the Supplier ten (10) days within which to make representations, before making a final decision on the arrangement rejection. 12 Communications - Solicitation Period To ensure the integrity of the competitive RFSA process, enquiries and other communications regarding the RFSA must be directed only to the Supply Arrangement Authority identified in the RFSA. Failure to comply with the request may result in the arrangement being declared non-responsive. To ensure consistency and quality of information provided to suppliers, significant enquiries received and the replies to such enquiries will be provided simultaneously to suppliers to which the RFSA has been sent, without revealing the sources of the enquiries. 13 Arrangement Costs No payment will be made for costs incurred in the preparation and submission of an arrangement in response to the RFSA. Costs associated with preparing and submitting an arrangement as well as any costs incurred by the Supplier associated with the evaluation of the arrangement, are the sole responsibility of the Supplier. 14 Conduct of Evaluation 1. In conducting its evaluation of the arrangements, Canada may, but will have no obligation to, do the following: (a) seek clarification or verification from suppliers regarding any or all information provided by them with respect to the RFSA; (b) contact any or all references supplied by suppliers to verify and validate any information submitted by them; (c) request, before issuance of any supply arrangement, specific information with respect to suppliers' legal status; (d) conduct a survey of suppliers' facilities and/or examine their technical, managerial, and financial capabilities to determine if they are adequate to meet the requirements of the RFSA; (e) verify any information provided by suppliers through independent research, use of any government resources or by contacting third parties; (f) interview, at the sole costs of suppliers, any supplier and/ or any or all of the resources proposed by suppliers to fulfill the requirement of the RFSA. 2. Suppliers will have the number of days specified in the request by the Supply Arrangement Authority to comply with any request related to any of the above items. Failure to comply with the request may result in the arrangement being declared non-responsive. 15 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 arrangement together on a requirement. Suppliers who submit an arrangement 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 arrangement, the Supplier must provide the information on request from the Supply Arrangement Authority. 3. The arrangement 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 Supply Arrangement 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 RFSA and any resulting supply arrangement. 16 Conflict of Interest - Unfair Advantage 1. In order to protect the integrity of the procurement process, suppliers are advised that Canada may reject an arrangement in the following circumstances: (a) if the Supplier, any of its subcontractors, any of their respective employees or former employees was involved in any manner in the preparation of the RFSA; (b) if the Supplier, any of its subcontractors, any of their respective employees or former employees had access to information related to the RFSA that was not available to other suppliers and that would, in Canada's opinion, give the Supplier an unfair advantage. 2. The experience acquired by a supplier who is providing or has provided the goods and services described in the RFSA (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 supplier remains however subject to the criteria established above. 3. Where Canada intends to reject an arrangement under this section, the Supply Arrangement Authority will inform the Supplier and provide the Supplier an opportunity to make representations before making a final decision. Suppliers who are in doubt about a particular situation should contact the Supply Arrangement Authority before the RFSA closing date. By submitting an arrangement, the Supplier represents that it does not consider itself to be in conflict of interest nor to have an unfair advantage. The Supplier acknowledges that it is within Canada's sole discretion to determine whether a conflict of interest or unfair advantage exists. 17 Entire Requirement The RFSA contains all the requirements relating to the solicitation. Any other information or documentation provided to or obtained by a supplier from any source are not relevant. Suppliers should not assume that practices used under previous contracts will continue, unless they are described in the RFSA. Suppliers should also not assume that their existing capabilities meet the requirements of the RFSA simply because they have met previous requirements. 18 Further Information 1. For further information, suppliers may contact the Supply Arrangement Authority identified in the RFSA. 2. For RFSAs issued out of PWGSC headquarters, enquiries concerning receipt of arrangements may be addressed to the Bid Receiving Unit, Procurement Operational Support Division, telephone 819-956-3370. For RFSAs issued out of PWGSC regional offices, enquiries concerning receipt of offers may be addressed to the Supply Arrangement Authority identified in the RFSA.