5.1. Annex: Federal Contractors Program for Employment Equity

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  1. Background
    The Federal Contractors Program (FCP) for employment equity is intended to address employment disadvantages for the four designated groups: women, Aboriginal peoples, persons with disabilities and members of visible minorities. Its goal is to achieve equality so that no person is denied employment opportunities for reasons unrelated to ability.
    In June 2013, a streamlined FCP was introduced with a focus on results and enables contractors to determine which initiatives best suit their organization in their efforts to achieve employment equity objectives. The Program threshold is $1,000,000 and the ineligibility sanctions apply to all contracts for the acquisition of goods and services.
    The requirements of the FCP are set out in the Directive on the Management of Procurement, Annex D.3.
    General information on the FCP is available on the Employment and Social Development Canada (ESDC)-Labour Program website.
  2. Application
    1. The FCP for employment equity applies to:
      1. procurements made on behalf of a federal department or agency listed under Schedule I, column I of Schedule I.1 or Schedule II of the Financial Administration Act (FAA) (for example, the Canadian Commercial Corporation, being listed in Schedule III, is not subject to the FCP) and who are covered by the Treasury Board Directive on the Management of Procurement; and
      2. all contracts and standing offers for the acquisition of goods and services, with the exception of those for:
        1. the purchase or lease of real property;
        2. construction (construction does not include architecture and engineering which are subject to the FCP).
    2. The FCP imposes particular obligations onto Contracting/Standing Offer Authorities and Contractors when:
      1. contractors are to be awarded contracts estimated at $1,000,000 or more (including all applicable taxes and not including options) or issued a Standing Offer (SO) where the call-up limitation is $1,000,000 or more (including all applicable taxes);
      2. a bidder/offeror:
        1. is not regulated by the Employment Equity Act (for example, provincially regulated entities, entities registered in foreign countries, etc.);
        2. has a combined workforce in Canada of 100 or more permanent full-time and/or permanent part-time employees;
        3. is doing business directly with Canada (being the prime contractor with Canada and not a subcontractor).
  3. Obligations of Contractors subject to the FCP for Employment Equity
    1. A bidder/offeror who is subject to the FCP, must have an Agreement to Implement Employment Equity (AIEE) in place with ESDC-Labour Program or must complete and sign an AIEE form and send to ESDC-Labour Program before contract award or issuance of a standing offer.
    2. If the bidder/offeror is a joint venture, each member of the joint venture must determine if it is subject to the FCP and if so, comply with the requirements to have an AIEE in place as per subsection a. above.
    3. Once a bidder/offeror subject to the FCP is awarded a contract or issued a standing offer for call-ups estimated at $1,000,000 or more, the contractor/offeror is required to honour its AIEE commitment to implement employment equity. This commitment is ongoing and not simply for the period of the contract or the standing offer for which it was initially signed.
  4. Obligations of Contracting/Standing Offer Authorities
    Once it has been determined that the client department or agency and the nature of the requirement are subject to the Federal Contractor’s Program (FCP), the Contracting/Standing Offer Authorities should request and obtain from the bidders/suppliers, as appropriate, the necessary evidence of compliance with the FCP, namely a valid and current Agreement to Implement Employment Equity (AIEE) duly signed by an authorized executive of the company or a valid AIEE number issued by Employment and Social Development Canada – Labour (ESDC – Labour). The accuracy of the AIEE number can be confirmed by comparing it with the number listed for that organization/bidder in the FCP List of Certified Employers on the Federal Contractors ProgramThe information is only accessible to federal government department and agency employees. page.
    Contracting/Standing Offer Authorities have, under the FCP for employment equity, different sets of obligations depending on the nature of the procurement document and the estimated value of the resulting contracts or call-ups against a standing offer (including all applicable taxes).
    1. Request for Supply Arrangement (RFSA)
      For an RFSA, the standard procurement templateThe information is only accessible to federal government department and agency employees. should include an advance notice (Part 6 B – Resulting contract clauses) to inform suppliers of the possibility that the FCP may eventually apply to the procurement documents to be issued from the Supply Arrangements.
    2. Contracts estimated at under $1,000,000
      For contracts estimated at under $1,000,000 (including all applicable taxes and not including options) and Standing Offers with a call-up limitation for either PWGSC or a client department under $1,000,000 (including all applicable taxes):
      1. In Standing Offers, the "Limitation of Call-ups" clause of Part 7A– Standing Offer is to indicate an amount under $1,000,000.
      2. All bid solicitation documents and Requests for Standing Offers are to include a certification by the bidder/offeror, as proposed in Part 5 of the standard procurement templates, declaring that the bidder/offeror is not listed on the FCP Limited Eligibility to Bid list on the Federal Contractors ProgramThe information is only accessible to federal government department and agency employees. page. (For exceptions, see article 5 of this Annex.)
      3. At the time of contract award/issuing of a Standing Offer, the Contracting/Standing Offer Authority is to verify the accuracy of such certification using ESDC-Labour Program’s FCP "Limited Eligibility to Bid" list based on the names appearing on the bid/offer. If the name of the bidder/offeror, or even only one name within a bidder’s/offeror’s list of members if the bidder/offeror is a joint venture, appears on the list then the bid/offer is non-responsive.
      4. In Standing Offers, the "Certifications" clause of Part 7A– Standing Offer, is to indicate that if the offeror gets listed by ESDC-Labour Program on the "FCP Limited Eligibility to Bid" list for not complying with employment equity requirements during the period of the Standing Offer, the standing offer may be set-aside. The Policy, Risk, Integrity and Strategic Management Sector will inform Standing Offer Authorities if any offeror gets added to the "FCP Limited Eligibility to Bid" list. In such circumstances, the Standing Offer Authorities will follow the usual PWGSC’s setting-aside assessment procedures which include consideration of the elements listed under article 5 of this Annex.
      5. In a competitive process, where multiple bids/offers have been received, the bidders/offerors will be considered non-compliant if the bidder's/offeror's name is on the "FCP Limited Eligibility to Bid" list. In such a competitive process, Contracting/Standing Offer Authorities should consider verifying if the bidder’s/offeror’s name is on the list prior to beginning the evaluation process so as to avoid unnecessary work for themselves and their clients. There is no requirement to evaluate bids that are non-responsive.
    3. Contracts estimated at $1,000,000 or above
      For contracts estimated at $1,000,000 or above (including all applicable taxes and not including options) and Standing Offers with a call-up limitation for either PWGSC or a client department at $1,000,000 or above (including all applicable taxes):
      1. The obligations mentioned at paragraphs i. to iv. of subsection b. above are also applicable to contracts estimated to be at $1,000,000 and above (including all applicable taxes and not including options) and Standing Offers with call-up limitations at $1,000,000 and above (including all applicable taxes);
      2. Contracting/Standing Offer Authorities are to include a second certification, this time regarding factual information on the bidders/offerors, as shown in Part 5 - Certifications of the standard procurement templates and in the titled Federal Contractors Program for Employment Equity - Certification. This second certification is also required at the time of contract award/issuing of a Standing Offer. The information collected is to be used by the Contracting/Standing Offer Authority to determine if the bidders/offerors are subject or not to the FCP and consequently to determine which clauses to include or not into the procurement document.
        1. When the bidder/offeror is not subject to the FCP, there will be no other clauses to add to the procurement document.
        2. When the bidder is subject to the FCP, a clause allowing for the termination of the contract in the event that the bidder would become in breach to the AIEE and be added to the "FCP Limited Eligibility to Bid" list, is to be inserted, as indicated in the standard procurement templates. If such event was to occur, the Contracting Authorities would then follow the usual PWGSC’s termination assessment procedures, which includes consideration of the elements listed under article 5 of this Annex.
        3. As indicated in paragraph iv. of subsection b. above, all Standing offers are to include a clause allowing for the set-aside of a Standing Offer in the event that the offeror would become in breach of the AIEE and be added to the "FCP Limited Eligibility to Bid" list. When the offeror is subject to the FCP and call-ups are estimated to be at $1,000,000 and above, an additional clause allowing for the termination of the call-up is also to be inserted as indicated in the standard procurement templates. For call-ups at $1,000,000 or above if a breach was to occur, the Standing Offer Authorities would then follow the usual PWGSC’s termination assessment procedures, which includes consideration of the elements listed under article 5 of this Annex. There is no such requirement for call-ups under $1,000,000 (including all applicable taxes).
  5. Exceptions
    1. In a non-competitive situation, if a bidder’s/offeror's name appears on the "FCP Limited Eligibility to Bid" list, such bidder/offeror should not be awarded a contract or issued a standing offer unless required to do so by law or legal proceedings, or when Canada considers it necessary to the public interest for reasons which include, but are not limited to:
      1. Only one person is capable of performing the contract/standing offer
      2. Emergency
      3. National security
      4. Health and safety
      5. Economic harm
    2. The Contracting/Standing Offer Authority is to obtain prior approval from its Director General or its Regional Director General and document its file. The Contracting/Standing Offer Authority should communicate an exception to ESDC-Labour Program at ee-eme@hrsdc-rhdsc.gc.ca.
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