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9. Chapter 9 - Special Procurements

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9.1 Special procurements - Introduction

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  1. This chapter presents information related to procurement that is unique or specific to a certain commodity, client or area. Therefore, this chapter contains a number of topics and each specific topic contains related subjects. These subjects follow the Supply Manual format identified in 1.5.5 Supply Manual Format. For example, topics covered are Major Crown Projects, Real Property Contracting and United States Foreign Military Sales.
  2. It is recognized that all procurement scenarios such as those listed in this chapter cannot address every possible situation that Public Works and Government Services Canada (PWGSC) may face in its common service delivery environment. However, the types selected are based on historical usage and recommendations from the contracting community.

9.5 Major Crown Projects

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This section describes Major Crown Projects (MCPs), the responsibilities of PWGSC in MCPs, procurement strategy development as well as other key elements related to MCPs.

On April 1, 2012, the Treasury Board ARCHIVED - Policy on the Management of Major Crown Projects was rescinded and replaced by the Policy on the Management of Projects. However, due to its applicability to pre-existing MCPs, the following sections will remain in the Supply Manual.

9.5.1 Major Crown Projects - General information

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  1. MCPs are by their very nature large procurements. The Supply Manual applies to them as it would to any other acquisition. What differs is the notion that participating departments must act in consort with one another in planning and overseeing the work performed by the contractor(s) in achieving the deliverables. No one department can act solely from its legislative point of view to the exclusion of the other participants.
  2. A project is deemed to be an MCP when its estimated cost will exceed $100,000,000 and the Treasury Board (TB) would assess the project as high risk. However, TB may require any project exceeding the sponsoring minister's delegated project approval authority to be managed as an MCP. As well, provision is made in the policy for a sponsoring department to request approval from TB to manage a project exceeding $100,000,000, but of lesser risk within a tailored MCP regime or outside the MCP management framework.
  3. The additional aspects of managing MCPs include obtaining approval-in-principle from Cabinet for an MCP having significant policy or fiscal framework implications, and the following TB mandatory requirements:
    1. that the project leader be a senior manager within the sponsoring department accountable directly to the deputy minister;
    2. that the project leader be viewed as personally and visibly accountable for all aspects of the project;
    3. that a Senior Project Advisory Committee (SPAC) be established with membership consisting of senior representatives of departments participating in the project. The role of this committee is to advise the project leader on all aspects of the project and carry out the procurement review function for the project. SPAC is addressed in more details in 9.5.20 Senior Project Advisory Committee;
    4. that an appropriate project performance measurement system be selected and implemented;
    5. that progress reports be submitted to TB at key events or as directed by TB;
    6. that a project evaluation report be submitted to TB; and
    7. that MCPs be reported to Parliament in accordance with the ARCHIVED - Management of Major Crown Projects.

9.5.5 Responsibilities of Public Works and Government Services Canada in Major Crown Projects

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In respect to MCPs, the Minister of PWGSC is accountable and responsible to Cabinet for the acquisition of the MCP goods and/or services under the Department of Public Work and Government Services Actand is responsive to the project leader. The Minister of PWGSC is accountable and responsible for all aspects of the contracting process and resulting contracts, including:

  1. participate in the project as a participating department as described in TB policy on Management of Major Crown Projects;
  2. manage the procurement process from solicitation through contract award to contract completion;
  3. support the project in accordance with any existing legislation or general interdepartmental arrangements;
  4. provide any project-specific services such as procurement and scheduling, as described in any agreement or Memorandum of Understanding (MOU), concluded with the sponsoring department;
  5. help to define user requirements/selecting the most effective procurement approach;
  6. ensure the best value for money through the optimum combination of specified quality, specified time and lowest life-cycle cost of the acquisition;
  7. include procurement issues in risk assessments and risk management plans;
  8. establish project files for all procurement related documents and deliverables;
  9. develop a structured approach to document requirements and deliverables, if applicable;
  10. ensure the contract is carried out pursuant to the legal framework and maintain the government standards of prudence, probity and equity, when dealing with the private sector;
  11. develop, with the client, the rules of engagement pre-contract;
  12. develop and release any formal and/or contractually binding communication between Canada's representatives and the bidder/contractor;
  13. provide access and open and competitive bidding to suppliers through the Government Electronic Tendering Service;
  14. pre-qualify suppliers and build supplier working relationships;
  15. manage the solicitation process and documents;
  16. make submissions to the TB for authority to enter into contracts, to seek a pre-approval authority for amounts for anticipated amendments and to amend contracts;
  17. lead all negotiations with contractors that could result in contract implications;
  18. develop, with the client, the rules of engagement for post contract award interaction between the client and the contractor;
  19. monitor Canada's interactions with the contractor to maintain the integrity of the contract; and
  20. manage the contract in order to maintain the integrity of the contractual agreement and compliance with the contract requirements.

9.5.10 Early Involvement

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  1. One of the most important tasks for the PWGSC manager relative to a new MCP is to integrate into the Project Team, as soon as possible, and ensure participation at all levels of the project. One of the key requirements after establishing the operational objectives of the project is the development of the procurement strategy for the equipment, parts and services that will be delivered by the project. This is also one of the key areas of interest for ministers when considering the Memorandum to Cabinet and/or the TB Submission. Therefore, the Project Team must get involved in the project, as early as possible, to ensure best value of the procurement, and that clients consider all possible strategies before committing the project to solutions, which may subsequently conflict with government procurement policies and strategic objectives. Contracting officers should analyze with the client what opportunities may exist to support their obligations as well as their departmental targets related to green procurement. Successful implementation of the Policy on Green Procurement requires the identification and implementation of environmental performance opportunities at both the strategic and operational levels, taking into consideration specific departmental buying patterns, sustainable development targets and other Government of Canada priorities.
  2. Best value is not confined to the contractual process; it is equally important at the requirements definition stage. For many acquisitions, especially for MCPs, it is at this earlier stage that best value may be achieved. Trade-offs should be made among factors such as quality, service, cost, procurability, environmental considerations and socio-economic considerations linked to a particular industry or region of the country. Quality and the desired performance level should be related to intended use. The most desirable technical quality or suitability is not necessarily the most desirable procurement because it may not be the most economical. In complex acquisitions, a cost/benefit analysis may balance technical quality against such factors as initial and operating costs, economic life, service, maintenance and repair.

9.5.15 Memorandum of Understanding with Client Department

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  1. A vital aspect in government contracting is the role played by PWGSC and its relationship with client departments at all stages in the life cycle management of goods and services in a MCP. Details of the PWGSC-client relationship will normally be covered in a signed general Memorandum of Understanding (MOU) between PWGSC and its client departments. These may be adjusted to suit particular PWGSC-client agreements. Acquisitions of a special or significant nature may require specific MOUs and more detailed treatment, such as that outlined in the TB policy Management of Major Crown Projects. Client departments are generally responsible for determining what they want, where and when. PWGSC is normally responsible for determining how goods and/or services will be provided to meet the needs of clients.
  2. In terms of life cycle management, this means that:

    Requirements definition is, in varying degrees, a client responsibility, depending on government policy and the type of goods and/or services. By and large, the more technically complex, special, or unique the requirement, the more it will be a client responsibility to define. Conversely, the more common an item, the less need for client input, except, for example, to specify the quantity. Acquisition is a PWGSC responsibility, use is a client responsibility, and disposal of goods is a PWGSC responsibility.

  3. This does not mean each party function in isolation. On the contrary, in the MOU it is essential that there be well-established lines of communication at all stages in the life cycle, reflecting the PWGSC-client division of responsibilities. In assessing their role and participation in the project, PWGSC must determine the nature and degree of the effect of the proposed project on their operations, asset base or other interests, and ensure that appropriate commitments are made; for example, by means of the MOU.
  4. Unless the MOU for an MCP specifically states otherwise, the division of responsibilities between PWGSC and the client department will be governed by the agreements contained in Annex 1.1: Matrix of Responsibilities between PWGSC and Client Departments for the Procurement of Goods and Services (Generic), which provides a generic division of anticipated types of responsibilities between PWGSC and client departments or in Annex: Specific Division of Responsibilities Agreements, which contains two client-specific agreements with the Department of National Defence.
  5. PWGSC's cost of services provided to client departments in respect to a MCP is recovered directly from the client. The services to be provided and their costs are negotiated with the client department, approved by TB as part of the Program Approval submission, and the results must be included in the MOU.

9.5.20 Senior Project Advisory Committee

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The role and membership of the Senior Project Advisory Committee (SPAC) as well as the responsibility of PWGSC in the development of the procurement strategy for Major Crown Projects (MCPs) are addressed below.

9.5.20.1 Procurement Strategy Development

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  1. PWGSC is responsible for developing and implementing procurement strategies within the framework of its client departments' needs, its legislative mandate and government policy. Operating departments must form a SPAC before initiating discussions with potential suppliers that could raise expectations as to the government's procurement strategy.
  2. The government has confirmed that all procurements in excess of $2,000,000 must be reviewed for potential regional and industrial benefits. To ensure that this review is carried out in an efficient and cost-effective manner, and in recognition of the diverse interests involved, TB has established an interdepartmental procurement review process applying to all such procurements. In the case of MCPs, this is carried out by the SPAC, whose role is defined in 9.5.20.10 Membership of the Senior Project Advisory Committee.
  3. Environmental performance is also embedded as a key consideration of the departmental procurement review process under the Procurement Review Committee. For sources of information, environmental issues and mitigating actions via Green Procurement, consult the Environmental Awareness Tool Kit and the Guideline for Integration of Environmental Performance Considerations in Federal Government Procurement. Consider the various environmental performance considerations listed in the Green Procurement Checklist. Contracting officers may also refer to the online course entitled Introduction to Green Procurement (C215).
  4. Where the procurement strategies proposed for significant projects require Cabinet approval, sponsoring departments must consult with the Treasury Board Secretariat (TBS) in preparing the submission to Cabinet. These consultations must include the analysis of any socio-economic initiatives, and the views of TBS must be specifically included in the submission to Cabinet.

9.5.20.5 Senior Project Advisory Committee

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  1. The Senior Project Advisory Committee (SPAC) provides an interdepartmental senior level forum for orienting a project to achieve relevant national objectives, stimulating agreements between the sponsoring and participating departments, resolution of interdepartmental issues, and review and discussion of project objectives and key project instruments. SPACs do not deliberate purely departmental issues, such as the operational requirement or departmental funding.
  2. A SPAC must be established for all Major Crown Projects (MCPs) or those requirements exceeding $100,000,000. The Project Leader of the client department chairs this committee, and membership includes representation from other government departments with an interest in the project. Committee members from other participating departments act as advisors and facilitators to ensure the views of their departments are made known at the SPAC and to ensure prompt and effective action is taken to meet the obligations of their departments to the MCP.
  3. Whenever a SPAC is convened, it also performs the function of a Procurement Review Committee including all significant associated procurements handled through the project office. SPAC meets at the call of the chairperson.

9.5.20.10 Membership of the Senior Project Advisory Committee

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  1. The Project Leader must determine which departments are potentially affected by, or could have program interests in the MCP. The Project Leader must ensure that these departments are notified in writing as early as possible in the life of the project, so that they may decide whether they should formally participate in the MCP. Whenever an MCP is likely to require private sector involvement, the departments notified must include appropriate contracting authorities and industrial and regional benefit authorities.
  2. The majority of MCPs will be procurement projects, which are subject to the TB Procurement Review Policy. Sponsoring departments should refer to this policy for more guidance. Departments sponsoring procurement projects must, as a minimum, notify the following departments:
    Contracting authorities and service agents:
    1. PWGSC;
    2. Defence Construction Canada.
    Industrial and regional benefit departments and agencies:
    1. Industry Canada;
    2. Western Economic Diversification Canada;
    3. Atlantic Canada Opportunities Agency;
    4. Economic Development Agency of Canada for the regions of Quebec.
    Others:
    1. Privy Council Office;
    2. Treasury Board Secretariat;
    3. Department of Finance Canada;
    4. Employment and Social Development Canada.
    As a minimum, sponsoring departments must assess whether departments listed below should also be notified, particularly for the specific areas noted:
    1. Environment Canada, for environmental assessment considerations (may be required by statute under certain circumstances);
    2. Department of Justice Canada, to ensure timely assistance in resolving any complex legal issues that can arise;
    3. Employment and Social Development Canada, for labour pool considerations;
    4. Canadian Heritage, when remote sites or locations are involved,
    5. Foreign Affairs and International Trade Canada, for international trade and export licensing; and
    6. Indian and Northern Affairs Canada.
  3. Other departments may notify the project leader of their intent to participate in the MCP, at which time they become participating departments.

9.10 Real Property Contracting

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  1. This section describes the responsibilities for real property contracting and provides some of the related procedures and methodologies.
  2. Acquisitions Branch, Public Works and Government Services Canada (PWGSC), provides procurement services related to real property contracting for federal departments and agencies. Real Property Contracting (RPC), Acquisitions Branch, is responsible for contracting real property services such as architectural, engineering and facility maintenance services as well as construction services. It is separate and has different responsibilities from Real Property Branch (RPB), PWGSC, which manages a portfolio of real estate in Canada and is the Government of Canada's real property expert.

9.10.1 Real Property Contracting Procedures

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  1. Although most of the generic practices and policies of the department apply to real property contracting, there are differences. Some of these differences are a result of complying with applicable legislation, or adapting to industry practices, or simply the realities of the services being procured. Many fundamental review processes do not apply to real property requirements and some examples follow. The Procurement Review Committee does not apply to the acquisition, modification and routine maintenance of real property. The Expense Management Tool (EMT) Application for Registration form PWGSC-TPSGC 514The information is only accessible to federal government department and agency employees. does not apply to architectural and engineering nor construction requirements.
  2. Clauses specific for real property contracting can be found in subsection 5-R of the Standard Acquisition Clauses and Conditions (SACC) Manual. Departmental standard procurement templates and many policies exclude some or all of real property contracting requirements and do not apply to real property requirements. SACC Manual clauses identified as mandatory may not apply to real property requirements. Standard Real Property Contracting (RPC) templates provide guidance to their contracting officers.
  3. All real property contracting work performed by Acquisitions Branch (AB) must be in accordance with the Government Contracts Regulations. The Federal Real Property and Immovables Act applies to the sale and purchase of real property, and leases, including all work performed through a lease. Real Property Branch (RPB), not AB, is responsible for requirements carried out under the Act. In order to protect the integrity of AB's system data, no requirements under the Act should be entered into the AB system, that is, the Automated Buyer Environment (ABE).

9.10.5 SELECT

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  1. SELECT is a database of pre-approved suppliers such as architects, engineers and construction trade contractors identified by their expertise and the services they provide. It is used by Public Works and Government Services Canada (PWGSC) to invite suppliers to bid on real property services procurements up to certain tresholds. SELECT provides a systematic rotation functionality that matches the specifics of the requirement with suppliers having the required expertise that are within a geographic range. Depending on the requirement, a supplier may be given the opportunity to accept or decline the work, or multiple suppliers may be given the opportunity to compete the requirement.
  2. For consulting services estimated at $10,000 or less, SELECT generates a short list of three qualified suppliers. The most suitable and readily available supplier may be contacted directly. For consulting services estimated between $10,000 and the NAFTA threshold, SELECT identifies a single supplier that meets the discipline and experience profile requirements. In both of these cases, the approval authority is based on non-competitive contract entry. For consulting services below the NAFTA services threshold value, the SELECT system may also be used to pre-select suppliers from which bids can be solicited.
  3. For construction services estimated at $10,000 or less, SELECT generates a short list of three qualified suppliers. The most suitable and readily available supplier may be contacted directly. For construction services estimated between $10,000 and $100,000, SELECT generates a short list of five qualified suppliers; however, the business practice in some locations is to select five to eight qualified suppliers, all of which are invited to bid. The supplier who submits the lowest-priced responsive offer is usually awarded the contract.

9.10.5.1 Use of SELECT for Requirements Subject to Comprehensive Land Claims Agreements (CLCAs)

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  1. CLCAs are law. The CLCA obligations are legally binding because they are contained in agreements signed by Canada and backed by legislations.
  2. If a requirement is subject to CLCAs, the contracting officer must either:
    1. Not use SELECT and proceed with the procurement process explained in section 9.35 Comprehensive Land Claims Agreements (CLCAs);

    or

    1. Use SELECT and follow the more tailored process described in section 9.35.91 SELECT.

9.10.10 Architectural and engineering services

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The contracting officer must determine the procurement strategy in consultation with the client. The main method of supply for architectural and engineering services is the standard contract, but Real Property Contracting also uses alternative methods of supply like standing offers and supply arrangements. Due to the qualitative nature of the architectural and engineering industry, the submission of full design proposals represents a large investment of time, effort, and money on the part of consulting suppliers. In order to reduce the possibility of consulting firms spending large amounts of money preparing such proposals for Public Works and Government Services of Canada projects, the Department uses both one and two phase request for proposals for architectural and engineering services.

9.10.15 Construction Services

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  1. There are three primary methodologies used in the procurement of construction services for projects:
    1. Design-Bid-Build (D-B-B);
    2. Design-Build (D-B);
    3. Construction Management (CM).
  2. The roles, relationships and responsibilities of the contracting parties vary considerably for each methodology. Choosing the optimum methodology is a key consideration for the project team. For construction services, the project team is composed of Real Property Contracting (RPC) of the Real Property Branch (RPB) and the client.
  3. Many variations exist for each approach and the selection of one methodology over another should be carefully analyzed by all stakeholders during the development of the risk management plan, well in advance of the procurement, in order to determine the inherent risks, advantages and disadvantages associated with each methodology. The selection of a particular methodology for the delivery of construction services is based upon an analysis of those risks identified in the plan that may impact the priority objectives of the project during the project's planning and implementation stages.
  4. Each methodology has advantages and disadvantages and one may be more suitable than another for any given project. The project team must weigh both the benefits and the shortcomings of using a specific methodology on their project. Traditionally, PWGSC has accepted the D-B-B methodology as the standard delivery process for construction projects. Although it may be time consuming, D-B-B provides the project team with a better 'comfort level' concerning costs and quality. Since design is 100 percent complete before construction begins, changes should be minimal.
  5. CM and D-B have been used extensively in the private sector, but used sometimes in PWGSC. A bid solicitation, in the form of a Request for Proposal, is used for both these methodologies in order to determine the successful supplier. Design-Build solicitations should also include an honorarium for at least three suppliers that continue to the phase two of the selection process to compensate them for work not normally required in the submission of a proposal.
  6. RPC generally uses an invitation to tender for construction contracts, with a public opening shortly following the specified closing time. The tenders are generally evaluated on the basis of the lowest priced responsive tender. Suppliers must submit their tenders in accordance with the invitation to tender and associated specifications and drawings. Contracting officers should consult the Standard Acquisition Clauses and Conditions (SACC) Manual clause R2710T for information on the submission of bids.
  7. Prequalification of suppliers is not normally done. If required, justification should be provided for prequalification and the criteria established to ensure that the industry can respond appropriately. Although a two-stage prequalification process may be necessary, a two-envelope process is the preferred method in construction. Suppliers are asked to submit two sealed envelopes, where envelope "A" will include the response to the prequalification requirements (almost always a pass/fail type of criteria). If the content of envelope "A" demonstrates that the supplier is qualified, the envelope "B", including the price and bid security, is normally opened publicly with other responsive bids.
  8. For requirements over $100,000, contracting officers must use the construction terms and conditions imposed by Treasury Board Secretariat (see clauses in subsection 5-R of the Standard Acquisition Clauses and Conditions [SACC] Manual). Bid security and contract security (clause R2890D) are also requirements above this threshold. The client should identify if additional or specialized insurance is required in the Insurance Terms for the contractor.
  9. The Federal Contractors Program for employment equity and the review by the Procurement Review Committee do not apply to construction contracts.
  10. The Minister of PWGSC has delegated to Real Property Branch (RPB) the ability to amend construction and maintenance contracts awarded by Acquisitions Branch (AB). This authority must be deducted from AB authorities to ensure that PWGSC does not exceed its overall authority from Treasury Board. The RPB Project Manager will submit, with the requisition, a risk management plan that will identify items that may result during the construction project. This plan will include a suggested dollar value called the "Risk Management Contingency". AB will review the plan and the suggested dollar value, and will establish an amount to seek approval for a Pre-approved Amount for Anticipated Amendments (PAAA).This amount will be used for subsequent amendments to the contract.

9.10.20 Elevator maintenance services

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This section of the Supply Manual has been removed. For reference purpose only, section 9.10.20 is available in the Supply Manual ArchiveThe information is only accessible to federal government department and agency employees., Version 2016-2.

9.15 United States Foreign Military Sales

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  1. The Foreign Military Sales (FMS) program is a program executed by the United States (U.S.) Department of Defense (DoD), that allows eligible foreign governments and international agencies to purchase defence articles and services from the U.S. Government.
  2. The FMS program is a mutually beneficial government-to-government method for the procurement of U.S. defence articles and services. Responsible arms sales further U.S. national security and foreign policy objectives by strengthening bilateral defence relations, supporting coalition building, and enhancing interoperability between U.S. forces and militaries of friends and allies.
  3. Sole sourcing through the FMS program may be considered as a method of procurement when the goods or services required relate to military equipment of U.S. origin and when, on the basis of the information available at the time, those goods and services are available or can be made available from the U.S. DoD.
  4. Only PWGSC Washington (PWGSC [W]) and the Defence and Major Projects Sector (DMPS) have delegated authority to contract through the FMS program.
  5. Requisitions for all new requirements that will be sole-sourced through the FMS program must be submitted by client departments to the PWGSC Central Allocations Unit (CAU) along with the sole source justification (see section 3.15 Non-competitive Contracting Process). CAU will allocate the file to the appropriate PWGSC Headquarters (PWGSC [H]) commodity manager for approval of the procurement strategy.
  6. When the commodity manager has determined that the requirement will be sole sourced through the FMS program, they will reallocate the requisition to PWGSC (W) using form PWGSC-TPSGC 1062-1 (available on the PWGSC Electronic Forms (ELF) application).
  7. The decision by the PWGSC (H) commodity manager to sole source the requirement through the FMS program must be adequately documented. As a minimum, the following information must be provided:
    1. the Goods and Services Identification Number (GSIN);
    2. the trade agreement(s) applicable to the procurement;
    3. the Advance Contract Award Notice (ACAN) and its result, if one was published;
    4. the sole source justification;
    5. any other pertinent information leading to the decision to sole source through FMS such as client's justification, etc.
  8. PWGSC (W), in its capacity as the primary accredited Canadian procurement agency to the U.S. DoD, is the departmental agency responsible for dealing with the U.S. Government on all contractual matters directly related to the FMS program (with the exception of those requirements to be handled by DMPS). PWGSC (W) coordinates all pertinent contractual and administrative arrangements in the U.S. on behalf of PWGSC and its clients.
  9. For more information on the FMS program, contracting officers can contact the PWGSC (W) Director General Office at 202-682-7604, or visit the following Defense Security Cooperation Agency websites:
    1. Foreign Military Sales;
    2. Security Assistance Management Material.

9.15.1 Foreign Military Sales planning

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  1. Through its security assistance policy, the USG provides for various forms of security assistance to other nations. The FMS program is a large and complex program, which is administered by the U.S. DoD. In Canada, PWGSC, as well as the client, plays an important role in the implementation and maintenance of this program.
  2. Transactions initiated within the FMS program are covered under basic categories of agreements (known as cases in the U.S. military organizations). The main categories are:
    1. Defined Order Cases: Certain defence articles and services can be provided only on defined line cases, which may offer items at individually estimated prices and delivery dates. The USG, where necessary, in turn contracts for defence articles and services that are required to fulfill the Letter of Offer and Acceptance (LOA);
    2. Blanket Order Cases (BOC) including Blanket Open End (BOE) arrangements through the U.S. Army, and Direct Requisitioning Procedures through the U.S. Navy: most repair parts and routine services can be offered under Blanket Order LOAs, which reduce the time needed for processing orders. These LOAs are perfectly suited for addressing subsequent needs, (i.e. where the client will require additional defence articles or services on a periodic basis). These agreements are similar to standing offers, allowing clients to submit requirements directly to the identified U.S. military organization. Support equipment including assemblies, components, special tools, test equipment, training aid devices, minor modifications performed at U.S. installations and repair and return services, training, etc., are usually the subject of BOC; and
    3. Co-Operative Logistics Supply Support Arrangements, commonly referred to as COLOG in Canada and CLSSA in the U.S.: CLSSA is a unique arrangement whereby Canada is able to invest in the U.S. supply system and receive access to U.S. DoD stocks. This arrangement involves two separate FMS cases. The first FMS case covers Canada's investment in specific USG supply system items; the second FMS case is used to requisition these items.
  3. PWGSC(H) will determine, before procurement through the FMS program is initiated, whether the provisions of the North American Free Trade Agreement or the World Trade Organization Agreement on Government Procurement apply and will take action accordingly. When these provisions do not apply, PWGSC will determine whether there is an existing or potential source of supply in Canada and after consultations with the Department of National Defence (DND), or any other client, and will establish whether in the circumstances, it would be more advantageous for the Government of Canada to procure in Canada or directly from the equipment manufacturer in the U.S. or from the U.S. DoD.
  4. Quite often the weapon system can only be purchased through the FMS program. The Arms Export Control Actgives the President discretion to designate which military end item must be sold through the FMS program exclusively. This discretion is delegated to the Secretary of Defence and is executed by the Defence Security Cooperation Agency in close coordination with the Defence Technology Security Administration and the Military Department (MILDEPT) or U.S. DoD component responsible for the end item. The Department of State approves or disapproves all sales, and is responsible for the continuous supervision and general direction of all sales. Four general criteria are used to determine if a sale is required to proceed through the FMS program: legislative/presidential restrictions; DoD/ MILDEPT policy, directive or regulatory requirements, e.g., the National Disclosure Policy, government-to-government requirements and interoperability/safety requirements for U.S. Forces. The PWGSC(W) office will confirm with the client when the FMS program is the only solution.

9.15.5 Contracting Protocol

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Contracting with the U.S. DoD for the supply of material or for the provision of services on a government-to-government basis is affected through the exchange of a Letter of Request (LOR) prepared by PWGSC(W) and of a Letter of Offer and Acceptance (LOA) prepared by the U.S. LORs are sent to the applicable military department, the U.S. Department of State and Defence Security Cooperation Agency, a defence department agency that oversees security assistance programs.

9.15.10 Time Frames

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  1. The standard period of time for a response from the U.S. DoD to an LOR submitted by PWGSC(W) on behalf of Canada, is as follows:
    1. 60 days from the date of receipt of the LOR for an official price and availability;
    2. 120 days from the date of receipt of the LOR for an LOA not requiring notification to Congress;
    3. 180 days from the date of receipt of the LOR for an LOA requiring notification to Congress, applicable to acquisitions of major defence equipment valued at $25M or more, or if the total case value exceeds $100M;
    4. up to nine months in the case of technical data packages due to special inquiries or studies to be carried out.
  2. It is not unusual to have LOAs and amendments exceed the projected targets based on the USG workloads and high priority cases required to support U.S. Foreign Policy.

9.15.15 Pricing and Payment

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  1. An LOA is used to submit price estimates to the purchaser country, as well as include a projected payment schedule. FMS prices may include, but are not limited to, the cost of the item; non-recurring research and development (R&D) and production costs; packing and handling plus administrative surcharges. The item price is the same price that would be charged to any other purchaser, including the U.S. Armed Forces. PWGSC(W) ensures the actual payment schedules correlates to the actual work performed.
  2. Once an LOA has been signed, the applicable MILDEPT buys the item or items from U.S. manufacturers. This purchase normally goes through U.S. DoD procurement channels, and may not happen quickly; the time lag between an LOA and a delivery can take a year or more, particularly for complex weapons systems. The price quoted in the LOA may not match the cost of the items upon delivery, though in fact most final prices fall below the original estimate. The final price is determined from actual contract costs and other surcharges, which must be charged in accordance with U.S. laws and regulations.

9.15.20 Surcharges

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  1. The Arms Export Control Actstates that the United States Government (USG) must manage the FMS program at no cost to the USG. The Act mandates collection of a percentage-based administrative surcharge on FMS cases to recover all applicable U.S. costs to execute, manage, and oversee the FMS program. This surcharge is assessed against the value of the FMS case. The work covered includes case writing, case management/execution (cost, schedule, performance), case closure and periodic reviews.
  2. Small case management line: effective 1 August 2006, any case that would not collect at least $15,000 in administrative surcharges will include a small case management line to charge the difference in value between the administrative surcharge amount and $15,000.
  3. FMS surcharges pay a significant amount of the salaries and operating costs of Security Assistance Organizations and other Defence Department personnel who carry out the FMS program.

9.15.25 Non-recurring Costs

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When requesting a proposal, PWGSC(W) sends a Letter of Request (LOR) to the U.S. DoD requesting them to identify if non-recurring costs (NRCs) are involved in the requirement. If the ensuing proposal/Letter of Offer and Acceptance (LOA) from the U.S. DoD includes NRCs, then PWGSC(W) pursues a waiver with Defence Security Cooperation Agency, before the signing of the LOA.

9.15.30 Release of Information

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The USG does not compete with U.S. industry for foreign sales and does not knowingly provide other governments with "comparison pricing information" especially when it is known that a commercial contract is being negotiated.

9.15.35 Processing of Documents

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  1. When a decision is made to satisfy a requirement through FMS, the file is either wholly reallocated or extracted to PWGSC(W), after the initial requisition review is carried out by the receiving PWGSC organization (headquarters or region). PWGSC(W) will prepare the Procurement Plan/Contract Planning and Advance Approval (CPAA).
  2. Material to be obtained through FMS must be identified by U.S. national stock numbers whenever possible. The second group of digits (country designator) must be 00 or 01. The designation 21, which indicates the presence of a Canadian number, is not acceptable and its use will cause the demand to be rejected.
  3. PWGSC(W) will review each requisition to ensure the adequacy and appropriateness of the information. If satisfactory, PWGSC(W) will prepare and submit an LOR to the applicable U.S. DoD organization.
  4. Upon receipt of the LOA, PWGSC(W) will carry out a verification to determine whether the LOA corresponds to the LOR and, if satisfactory, will request approval/concurrence as well as funding from the client department.
  5. Following the acceptance of the LOA by PWGSC(W), funds are transferred from the Canadian client to the USG via a Canadian account at the Federal Reserve Bank in New York. The U.S. DoD will initiate no action until the transfer of funds has been completed.

9.15.40 Contract Administration

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  1. PWGSC(W) is responsible for contract administration including billing/payments and expediting delivery, except for COLOG.
  2. PWGSC(W) may arrange program management reviews and/or status review meetings to allow clients to discuss related matters with representatives from the U.S. DoD.

9.15.45 Contract Amendments

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  1. PWGSC(W) will negotiate contract amendments, when required.
  2. When funds in certain contracts (cases) have not been fully expended, a case amendment extending the period of time to use up funding may be requested. This normally applies to arrangements where the scope of work is not affected.

9.15.50 Contract Closing

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  1. When delivery is completed and final determination of cost is made, PWGSC(W) will initiate closing action and will seek finalization of accounts. PWGSC(W) will request a cheque payable to the Receiver General for Canada if funds are due to Canada. If funds are owed to the United States Government (USG), funds will be requested from the Canadian client.
  2. Closure of FMS contracts involving procurement from commercial suppliers may take place years after delivery of material because of the need to audit and renegotiate certain requirements peculiar to the U.S. DoD procurement process. A minimum of two years is required to close out an FMS case after final delivery of the goods and/or services.
  3. At the time of final closure, the estimated amounts in the LOA are changed to actual costs and a final statement of account is issued.

9.20 Co-Operative Logistics and Blanket Order Cases with the United States Department of Defense

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  1. This section provides details of the Canada/United States (U.S.) of America Co-Operative Logistics (COLOG) Supply Support Arrangement (CLSSA) and describes specific responsibilities of Public Works and Government Services Canada (PWGSC) in relation to this supply support arrangement.
  2. The COLOG/CLSSA was initially approved in 1965. PWGSC will make the necessary arrangements to establish with the USG the contractual instruments such as COLOG arrangements or blanket order cases (BOC), thus allowing the Canadian Department of National Defence (DND) to obtain directly from the U.S. Department of Defense (DoD), material and services, as required.

9.20.1 Requisition Receipt

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  1. Contracting officers should refer to 9.15 United States Foreign Military Sales or information concerning the requisition process of the U.S. FMS program.
  2. The COLOG Operations Office in the Defence and Major Projects Sector (DMPS), Acquisitions Branch, will review requisitions for COLOG and BOC and provide support to these activities, as detailed under the Referral Program activities (see 9.20.20 Referral Program), on behalf of PWGSC.

9.20.5 Planning

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  1. Under COLOG arrangements, a participating country is required to purchase an equity in the supply system of the appropriate service within the U.S. DoD through a Stock Level Case, which is adjusted as required, up or down, depending on usage. Canada has purchased an equity in each of the three U.S. Forces supply systems, U.S. Army, Air Force and Navy, on an as and when required basis, and pays for only those items it actually draws out of the systems.
  2. Since U.S. law prohibits the U.S. DoD from expending its funds on speculative purchases for other than its own Forces, there is a requirement for deposits to be made usually monthly, in advance, by participating foreign nations. The amount of the deposit should correspond to the anticipated delivery value in the succeeding quarter.
  3. A final accounting is carried out when all items have been delivered or cancelled and all discrepancies have been resolved. This accounting results in a contract amendment requiring either a final payment by Canada or a refund to Canada.

9.20.10 Establishment and Renewal of a Stock Level Case (FMSO I)

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  1. It is necessary to establish a Stock Level Case, also referred to as Foreign Military Sales Order (FMSO I), to obtain COLOG support from the U.S. DoD. When the U.S. Air Force, U.S. Army or U.S. Navy, as applicable, agrees to supply, through COLOG, spare parts to the Armed Forces of a foreign nation, the U.S. material managers involved will take action to augment the U.S. DoD supply systems to correspond to the client's anticipated requirement.
  2. Stock Level Cases are negotiated as required.

9.20.15 Establishment of a Requisitioning Case (FMSO II)

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  1. PWGSC establishes annually a Requisitioning Case, also known as a Foreign Military Sales Order (FMSO) II, before Department of National Defence (DND) is allowed to draw spare parts from the U.S. DoD supply systems.
  2. PWGSC has delegated to DND the responsibility for placing orders directly with the U.S. Navy, the U.S. Army and the U.S. Air Force, as applicable, once the appropriate Stock Level Case (FMSO I) and Requisitioning Case (FMSO II) are in place. Requisitions for COLOG eligible items are transmitted directly by DND to U.S. DoD by means of a computer terminal linked to the U.S. Defense Automatic Addressing System Center, which provides direct access to the U.S. military supply systems.

9.20.20 Referral Program

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  1. There are three aspects to the Referral Program:
    1. referral of items with an extended price of US $20,000 at the time of requisitioning;
    2. the Quarterly List of all items procured through COLOG;
    3. the Annual List of items procured through COLOG.
    This is not a part of the establishment of the contract but rather action that occurs after the contract is established and throughout the life of the contract as long as COLOG requisitions are submitted against the case.
  2. The following summarizes the Referral Program:
    1. When the extended price of an item is US $20,000 or more, the DND COLOG Office responsible for submitting requisitions through COLOG on the U.S. DoD systems, will provide information on demand to the PWGSC COLOG Operations Office (Defence and Major Projects Sector [DMPS]).
    2. The purpose of this referral is to allow DMPS to review the procurement to determine whether procurement through Canadian and/or other sources is more advantageous to Canada.
    3. The DMPS COLOG Operations Office coordinates the review with input from the PWGSC product managers as required.
    4. If it is determined that the item is available from the Canadian industry, procurement action should be completed in Canada unless it is established that such action is not justifiable from a cost standpoint or that other conditions are unacceptable, particularly as they pertain to operational requirements. Similarly, if it is determined that the item is available at less cost from any other commercial source of supply, procurement action may be completed commercially unless it is established that such action is not justifiable from a total cost standpoint or that other conditions are acceptable, particularly as they pertain to operational requirement.
    5. If the item cannot be procured through the Canadian or foreign-based companies, DND will be advised to demand it from the U.S. DoD through COLOG.
    6. All referrals should be processed as expeditiously as possible. A full reply or at minimum, an interim reply will be provided to DND within 30 days of receipt of the referral.
    7. The second portion of the demand Referral Program is that the DND COLOG Office, responsible for the COLOG program, will forward quarterly to DMPS a printout, which will list all procurement through COLOG over the last quarter, regardless of value or priority.
    8. The third portion of the Referral Program is similar to the second portion except that it is based on an annual list being provided by DND of all procurement through COLOG for the last fiscal year. A similar review as the one performed for the quarterly reports may be conducted.
    9. The purpose of these reviews is to provide an overview of procurement being done through COLOG over a period of time. This would not be visible with only a review of procurement of individual items with a value over US $20,000. This review will allow PWGSC to seek sources based on requirements demanded over time. Often supply of an individual item may not be attractive to a supplier; however, when procurement of individual items over a period of time is collectively viewed, the combined value may be very attractive to a supplier.

9.20.25 COLOG Termination

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If Canada decides to terminate COLOG arrangements, there is a process that varies with the U.S. DoD service involved, which will identify those items that Canada is liable to procure from the U.S. DoD.

9.25 Use of the Defence Production Revolving Fund and Loan Account

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Under section 16 of the Defence Production Act, in particular, the Minister of Public Works and Government Services Canada (PWGSC) is authorized to acquire, utilize, store, maintain, transport, sell, exchange or otherwise dispose of defence supplies, services, projects, real or personal property. The Minister is also empowered to authorize loans or advances and loan guarantees. Expenditures incurred pursuant to the above authority are to be expended from the Consolidated Revenue Fund.

9.25.1 Program Description

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  1. The Defence Production Loan Account (DPLA) provides PWGSC with an account to make loans or advances to aid in defence procurement such as working capital loans or advance payments on contracts and to make payment for such.
  2. Although the Adjustment of Accounts Act of 1980 eliminated the term Defence Production Revolving Fund (DPRF) from the Defence Production Act, PWGSC was advised by Treasury Board that it will continue to designate and operate the DPRF for other than loan transactions. Thus the DPRF provides PWGSC with a budgetary account to purchase defence supplies, to make payment for such, and to get reimbursed out of an appropriation of a client (for example, Department of National Defence) or by an agent of Canada or by an associated government. The DPRF can be used for the following purposes:
    1. finance the stockpiling of "essential" materiel or defence supplies;
    2. advance production of defence supplies/materiel to permit workload smoothing of defence industrial facilities; and
    3. temporarily fund the acquisition of defence supplies to meet urgent requirements, pending appropriation of funds to finance unplanned requirements.
  3. As stated in the Defence Production Act, associated governments are the governments of the British Commonwealth and of the North Atlantic Treaty Organization, or the government of any other country designated by the Governor in Council, as being a country the defence of which is vital to Canada.
  4. The DPRF was established for interim financing purposes, as it has to be reimbursed by a client or an associated government or whoever receives the finished product. As such, the DPRF can be used to make initial payments and subsequently recover such payments from the client. It is simply a temporary accommodation, and it would be illegal and improper to use it for a permanent commitment of any kind. Although the use of the DPRF requires that money expended will be reimbursed at the time delivery is made to the client, such use does not preclude the making of progress payments to suppliers and the interim recovery of these progress payments from the client.
  5. Expenditures charged to the DPRF may be used for the following purposes:
    1. Stockpiling of materials or substances, such as steel and oil, designated by the Governor in Council, as essential to the needs of the community. In such cases:
      1. an order-in-council is required;
      2. a client appropriation is not immediately required for stockpiling essential materials, but the cost of materials used must be recovered from the appropriation of the client.
    2. Stockpiling of defence supplies, which Canada deems it advisable to maintain (certain defence supplies such as ammunition.) In such cases:
      1. an order-in-council is not required;
      2. although an appropriation is not immediately required for stockpiling defence supplies, Department of National Defence (DND) must reimburse the DPRF from an appropriation when the finished goods are delivered to DND.
      3. acquisition, storage or maintenance of defence supplies. In such cases:
        1. an order-in-council is not normally required;
        2. a client appropriation is required.
  6. Loans or advances charged to the Defence Production Loan Account (DPLA) may be used for any purpose other than for capital assistance. When loans are involved:
    1. an order-in-council is not required;
    2. although an appropriation by the client is not immediately required, the liability for any loss must ultimately be covered from the appropriation of the client.
  7. Losses sustained pursuant to a loan or an advance made against the DPLA can only be credited pursuant to an appropriation by Parliament.

9.30 Purchases from CORCAN

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  1. Correctional Service Canada (CSC) has sponsored a rehabilitation program within its institutions designed to train inmates so that after their release, they have a better chance of obtaining employment, based on the experience gained while in the program. This program is known as CORCAN. CORCAN is a key rehabilitation program of CSC. It is mandated to provide employment training and employability skills to offenders in federal correctional institutions in support of the social policy of the Government of Canada.
  2. From an acquisition perspective CORCAN has a dual role, one as a purchaser of goods and services that it uses in its production and operations, and the other as a supplier of goods and services to federal government departments, agencies and Crown corporations.

9.30.1 Requisition Receipt

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When in receipt of a requisition for goods and services that are available from CORCAN, Public Works and Government Services Canada (PWGSC) contracting officers, whenever possible and in recognition of the potential benefits to Canada, will recommend to the client that CORCAN be considered as a source of supply. The opportunity to consider acquiring goods and services from CORCAN will be promoted regardless of whether PWGSC has issued a mandatory procurement instrument for such requirement.

9.30.5 Memorandum of Understanding

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The Memorandum of Understanding between Public Works and Government Services Canada and CORCAN (as a supplier) expired; therefore this section has been deleted from the Supply Manual. General information about the process has been updated and is provided in section 9.30.10 Implementation.

For reference purpose only, section 9.30.5 is available in the Supply Manual ArchiveThe information is only accessible to federal government department and agency employees., Version 2014-4.

9.30.10 Implementation

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  1. Since acquisitions from CORCAN are considered "transfers" of goods and services between federal organizations, they are not contracts within the meaning of the Government Contracts Regulations (GCRs) and the Treasury Board (TB) Contracting Policy. The procurement provisions of the trade agreements do not apply to a "transfer" between CORCAN and the Government of Canada; these transactions are not procurements and as such are excluded from the application of the trade agreements. Furthermore, Comprehensive Land Claims Agreements do not apply on these transactions.
  2. If a department, agency or Crown corporation is satisfied that a particular good or service offered by CORCAN provides good value, and funds are available, then the acquisition may take place without calling for bids and without reference to the traditional Treasury Board contract entry levels.
  3. But if a department, agency or Crown corporation decides to use Public Works and Government Services Canada, Acquisitions Branch (AB) as the contracting authority, AB internal policies apply. In this case, even though arrangements with CORCAN are not governed by the GCRs and the TB Contracting Policy, all existing departmental limits governing the approval of entry into and signing of contract apply.
  4. Documentation of an acquisition from CORCAN takes the form of a "Stores Transfer Order".
  5. Additional information on how federal organizations can acquire goods and services directly from CORCAN can be obtained by contacting a local CORCAN sales representative at 1-800-267-0354 or by following the instructions provided in the Stores Transfer Guideline No. E60PQ-050000-001-PQThe information is only accessible to federal government department and agency employees. (PDF Version 143 KB) (Help on File Formats) posted in the Standing Offer Index (SOI).

9.34 Aboriginal Consultation and Accommodation

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The contracting officer should remind the client of its obligation to consult and accommodate and encourage the client to undertake consultation with Aboriginal groups, where required. Please refer to section 2.16 Aboriginal Consultation and Accommodation.

9.35 Comprehensive Land Claims Agreements (CLCAs)

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9.35.1 General information on Comprehensive Land Claims Agreements

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  1. During the procurement planning stage, the contracting officer must determine whether any Comprehensive Land Claims Agreements (CLCAs) apply, and, if so, how they will affect the procurement strategy. The contracting officer must also ensure that the procurement file contains adequate documentation on the measures taken to address any CLCA procurement obligations, especially with regards to sections 9.35.25 Requirements Definition, 9.35.35 Notification of Procurement and 9.35.45 Evaluation Criteria.
  2. The federal government, represented by Aboriginal Affairs and Northern Development Canada (AANDC), has negotiated a number of CLCAs with Aboriginal peoples. CLCAs are modern treaties that are based on the concept of continued Aboriginal rights and title to lands traditionally used and occupied by an Aboriginal group, which have not been dealt with by treaty or other legal means. No two agreements are exactly the same.
  3. CLCAs are law. The CLCA obligations are legally binding because they are contained in agreements signed by Canada and backed by legislation. Furthermore, the Aboriginal rights detailed within them are constitutionally protected under Section 35 of the Constitution Act 1982.
  4. Most CLCAs include measures dealing with procurement, and although these measures are not always identical in the various agreements, they are all aimed at enhancing economic opportunities of the Aboriginal group benefiting from the agreement (referred to as "CLCA beneficiaries"), usually through increased possibilities of competing successfully for contracts in their settlement areas, or of participating in employment, training or subcontracting opportunities. Because the CLCAs are not identical, it is important to review each applicable agreement to determine the contracting obligations.
  5. Canada’s procurement obligations vary with each CLCA, but can include:
    1. Separating requirements into commodity or geographic groupings, whenever practical and consistent with sound procurement management, to permit smaller and more specialized firms to submit bids;
    2. Notification of the procurement to the land claimant groups and/or CLCA beneficiary firms;
    3. Use of CLCA business directories/lists (refer to 9.35.60 Business Directories/Lists);
    4. Use of bid evaluation criteria to benefit CLCA beneficiaries, subject to international obligations, and wherever practical and consistent with sound procurement management; and
    5. Right of first refusal for procurements related to certain topics, e.g. archaeology, heritage, parks, surveying (refer to 9.35.40 Right of First Refusal).
  6. A procurement that is subject to CLCAs and one or more of the trade agreements may involve special considerations (see 9.35.70 International Trade Agreements and 9.35.75 Canadian Free Trade Agreement and Agreement on Internal Trade). Furthermore, a procurement that is subject to CLCAs but not to any of the international trade agreements must adhere to all procurement policies applicable when a procurement is not covered by international trade agreements, e.g. the Canadian Content Policy for requirements over $25,000.
  7. For procurements that may be subject to CLCAs, contracting officers may, after reviewing section 9.35 Comprehensive Land Claim Agreements (CLCAs), seek assistance as follows:
    1. All PWGSC contracting officers, except those in Western Region may consult the Policy, Advice and Aboriginal Considerations Division (PAACD), at telephone number 819-956-0717, or forward enquiries to TPSGC.RCNDGAERTGSAEA-NCRABCLCAPSAB.PWGSC@tpsgc-pwgsc.gc.ca for assistance with determining how a CLCA may affect the overall procurement strategy. PAACD can assist contracting officers in identifying the CLCA contracting obligations and in developing methods of meeting them on a case-by-case basis. When requesting assistance from PAACD, contracting officers should provide the following information about their procurements, to expedite their requests:
      1. brief description of requirement;
      2. final delivery location(s);
      3. name of client department;
      4. will the goods/services/construction be used by an aboriginal community?
      5. will the procurement be set aside under the Procurement Strategy for Aboriginal Business (see 9.40.1 Decision to Set Aside a Procurement under PSAB)?;
      6. applicable trade agreements, and/or reasons for exclusion from any trade agreements;
      7. type of procurement instrument, e.g. contract, standing offer, supply arrangement;
      8. solicitation method (competitive or sole source);
      9. method of advertising e.g. the Government Electronic Tendering Service (GETS), source list;
      10. estimated dollar value;
      11. anticipated date of issuance of solicitation.
    2. PWGSC Contracting Officers in Western Region may request assistance by sending an e-mail to the Northern Contaminated Sites Program (NCSP) at WST.SSO-CLCA@pwgsc.gc.ca.
    3. When requesting assistance from either of these divisions, contracting officers should do so as early as possible because of the possible need to consult with others (e.g. Legal Services, Aboriginal Affairs and Northern Development Canada, Treasury Board Secretariat) before responding to a request.
    4. The primary sources of policy advice on CLCAs for PWGSC contracting officers are PAACD and NCSP, as detailed above. Contracting officers should share any advice received on CLCAs from other sources with PAACD or NCSP as appropriate, before taking any action, in order to ensure a consistent approach to the implementation of the CLCA contracting obligations. As well, any discrepancy in the information gathered by the contracting officer must be brought to the attention of PAACD or NCSP. Contracting officers must document their files to include any advice received. The approval documents should include the rationale for any key decisions.
    5. An online course on Aboriginal Considerations in Procurement (#C223E) is available by visiting the Canada School of Public Service's Campusdirect website.

9.35.5 Comprehensive Land Claims Agreements in Effect

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  1. At present, there are 24 Comprehensive Land Claims Agreements (CLCAs) (including eleven which fall under the Umbrella Final Agreement – Council for Yukon Indians) that have been given Royal Assent and are in effect. CLCAs affecting federal government procurement exist for areas within the Yukon, the Northwest Territories, Nunavut, northern Quebec, and northern Labrador. Although there are CLCAs for areas within British Columbia, they do not contain procurement obligations. There are currently no CLCAs for areas within Alberta, Saskatchewan, Manitoba, Ontario, New Brunswick, the island of Newfoundland, Nova Scotia or Prince Edward Island.
  2. The CLCAs that are in effect are listed below along with their approximate settlement areas. Where available, a link has been provided to the associated Treasury Board Contracting Policy Notice, which includes an excerpt of the CLCA contracting provisions. Otherwise, a link has been provided to the full text of the comprehensive land claims agreement on the Aboriginal Affairs and Northern Development Canada website, along with references to the articles regarding contracting provisions.

9.35.5.1 Quebec

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James Bay and Northern Quebec Agreement (JBNQA) (1975), amended to include the Northeastern Quebec Agreement (1978): from the shores of James Bay and Hudson Bay to Labrador, covering approximately 50 percent of Quebec's land mass, mainly the northern portion of the province. The JBNQA has three aboriginal signatories, representing the Cree, Inuit and Naskapi of Quebec. The JBNQA contains conditions that apply to both the Cree and Inuit, as well as conditions that apply solely to the Cree, conditions that apply solely to Inuit, and conditions that apply solely to the Naskapi. The Nations map shows which communities are inhabited by Cree, Inuit and Naskapi, and therefore which conditions would apply. For communities not detailed on this map, contracting officers should seek assistance in accordance with 9.35.1 g.

Inuit Provisions:

  1. James Bay and Northern Quebec Agreement (JBNQA), section 29.0 (Inuit Economic and Social Development);
  2. Agreement Respecting the Implementation of the JBNQA (PDF 337 KB) - (Help on File Formats) Annex A, Part II (Inuit Employment and Contract Priority).

Cree Provisions: James Bay and Northern Quebec Agreement, section 28.10 (Cree Participation in Employment and Contracts).

Naskapi Provisions: Northeastern Quebec Agreement, Section 18 and paragraph 20.20.

9.35.5.5 Yukon, Northwest Territories, and Nunavut

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  1. The Inuvialuit Final Agreement (1984): the islands and part of mainland along the Beaufort Sea (northwest portion of the Northwest Territories, including western portion of Victoria Island, all of Banks Island, Prince Patrick Island in the northern portion, and the western portion of Melville Island). Includes (but is not limited to) Aklavik, Holman, Inuvik, Mould Bay and Tuktoyaktuk. The Gwich'in Comprehensive Land Claims Agreement also covers Inuvik and Aklavik.
  2. Gwich'in Comprehensive Land Claim Agreement (1992): parts of northeastern Yukon and northwest portion of the Northwest Territories. Includes (but is not limited to) Aklavik, Fort McPherson, Inuvik and Tsiigetchic. The Inuvialuit Final Agreement also covers Inuvik and Aklavik. A Yukon Transboundary Agreement, for the Tetlit Gwich'in claimant group, exists as Appendix C under this final agreement. Notification of procurement opportunities for both the Gwich'in CLCA and the Yukon Transboundary Agreement must be sent to the Gwich'in Tribal Council.
  3. Nunavut Land Claims Agreement (1993): Northern Canada - includes districts of Franklin (central Nunavut), Keewatin (south-central Nunavut, northwest coast of Hudson's Bay area), Baffin Island (southeast portion of Nunavut) and Ellesmere Island (northern portion of Nunavut). Includes (but is not limited to) Arctic Bay, Arviat, Baker Lake, Bathurst Inlet, Cambridge Bay, Canadian Forces Station (CFS) Alert, Cape Dorset, Chesterfield Inlet, Clyde River, Eureka, Gjoa Haven, Grise Fiord, Hall Beach, Igloolik, Iqaluit, Kimmirut, Kugluktuk, Nanisivik, Pangnirtung, Pelly Bay, Pond Inlet, Qikiqtarjuaq, Rankin Inlet, Repulse Bay, Resolute, Sanikiluaq, Taloyoak, Umingmaktok and Whale Cove.
  4. Umbrella Final Agreement – Council for Yukon Indians (1993): This agreement provides a framework for the negotiation of agreements with Yukon First Nations and has so far resulted in the eleven CLCAs listed further below.
    The general contracting obligations of each Yukon First Nation CLCA are contained in Chapter 22 – Economic Development Measures (section 22.5.0 - Contracting), and these obligations are fully addressed in the guidance provided within section 9.35 Comprehensive Land Claims Agreements (CLCAs) of the Supply Manual. Access provisions are contained in Chapter 6 – Access (section 6.4.0 - Government Access) of each Yukon First Nation CLCA.
    More specific contracting obligations which apply to only certain procurements relating to special management areas (e.g. wildlife areas, parks, historic sites), heritage resources, surveying of settlement land boundaries or areas, or forest resources may be contained in Chapter 10 – Special Management Areas, Chapter 13 – Heritage (section 13.12.0 – Economic Opportunities), Chapter 15 – Definition of Boundaries and Measurement of Areas of Settlement Land (section 15.7.0 – Employment and Economic Opportunities), and Chapter 17 – Forest Resources (section 17.14.0 - Economic Opportunities) of each Yukon First Nation CLCA. Contracting officers with these types of procurements are encouraged to seek assistance in accordance with 9.35.1 g.
    1. First Nation of Nacho Nyak Dun Final Agreement (1995): Part of Yukon Territory covering Mayo and Stewart Crossing.
    2. Champagne and Aishihik First Nations Final Agreement (1995): Part of Yukon Territory covering Haines Junction, Canyon Creek and Champagne.
    3. Teslin Tlingit Council Final Agreement (1995): Part of Yukon Territory covering Teslin.
    4. Vuntut Gwitchin First Nation Final Agreement (1995): Part of Yukon Territory covering Old Crow.
    5. Selkirk First Nation Final Agreement (1997): Part of Yukon Territory covering Pelly crossing.
    6. Little Salmon/Carmacks First Nation Final Agreement (1997): Part of Yukon Territory covering Carmacks.
    7. Tr'ondëk Hwëch'in Final Agreement (1998): Part of Yukon Territory covering Dawson City.
    8. Ta'an Kwach'an Council Final Agreement (2002): Part of Yukon Territory covering Whitehorse.
    9. Kluane First Nation Final Agreement (2004): Part of Yukon Territory covering Burwash Landing.
    10. Kwanlin Dun First Nation Final Agreement (2005): Part of Yukon Territory covering Whitehorse.
    11. Carcross/Tagish First Nation Final Agreement (2005): Part of Yukon Territory covering Carcross and Tagish.
  5. Sahtu Dene and Metis Comprehensive Land Claim Agreement (1994) - see Chapter 12 - Economic Measures: Northwestern part of the District of Mackenzie, including the communities of Colville Lake, Deline, Norman Wells, Fort Good Hope, and Tulit'a.
  6. Tlicho Land Claims Agreement (2005) - Appendix B of TB CPN 2006-4: Part of the Northwest Territories and part of Western Nunavut. Includes, but is not limited to, Yellowknife, Behchoko (Rae-Edzo), Gameti (Rae Lakes), Wha Ti and Wekweti.
  7. Nunavik Inuit Land Claims Agreement (2008) - see Article 13 – Government of Canada Employment and Contracts and, if applicable, Article 20 – Archaeology (Part 20.7): The settlement areas of the Eeyou Marine Region Land Claims Agreement (EMRLCA) and the Nunavik Inuit Land Claims Agreement (NILCA) overlap and are located within the islands and the marine waters along the Quebec shore in the James Bay and south-eastern Hudson Bay. They are within the boundaries of the Nunavut Territory, but outside the settlement area of the Nunavut Land Claims Agreement.
  8. Eeyou Marine Region Land Claims Agreement (2011) - see Chapter 21 - Government Employment and Contracting and, if applicable, Chapter 26 – Archaeology (section 26.8 – Employment and Contracting): The settlement areas of the EMRLCA and the NILCA overlap and are located within the islands and the marine waters along the Quebec shore in the James Bay and south-eastern Hudson Bay. They are within the boundaries of the Nunavut Territory, but outside the settlement area of the Nunavut Land Claims Agreement.

9.35.5.10 British Columbia

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This section has been removed in Version 2013-7 of the Supply Manual.

9.35.5.15 Newfoundland and Labrador

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Labrador Inuit Land Claims Agreement (2005) - Appendix A of TB CPN 2006-4: Part of Northeastern Quebec and part of Northern Labrador. Includes (but is not limited to) Hopedale, Makkovik, Nain, Postville and Rigolet.

9.35.10 National Park Agreements and Department of National Defence Co-operation Agreements

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  1. Contracting officers should also be aware that a number of National Park Agreements and DND Co-operation Agreements have been signed between individual departments and certain aboriginal groups. These agreements, which are listed below can be found in sections 7 to 10 of TBS Contracting Policy Notice 1997-8:
    1. Section 7: Agreement for the Establishment of a National Park on Banks Island
    2. Section 8: Tuktut Nogait National Park Agreement
    3. Section 9: Co-operation Agreement between the Inuvialuit Regional Corporation and the Department of National Defence concerning the Operation and Maintenance of the North Warning System
    4. Section 10: Co-operation Agreement between the Inuvialuit Regional Corporation and the Department of National Defence concerning the Restoration and Clean-up of DEW Sites within the Inuvialuit Settlement Region
  2. When advised by the client department, PWGSC will consider these co-operation agreements in the procurement process.

9.35.15 Comprehensive Land Claims Agreements under Negotiation

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There are currently several Comprehensive Land Claims Agreements (CLCAs) under negotiation. The Policy, Advice and Aboriginal Considerations Division will advise contracting officers when new CLCAs come into effect.

9.35.20 Applicability of Comprehensive Land Claims Agreement Contracting Obligations

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  1. If a procurement, or a portion thereof, includes the final delivery of goods, services, and/or construction, for any department, agency or Crown corporation of the federal government, to locations covered by CLCAs, then the contracting obligations of each applicable CLCA will apply to each associated portion of the procurement. The final delivery point(s), which are not necessarily the destination addresses detailed in the requisition, determine the applicability of a CLCA, not the origin of the requisition (i.e. ordering office).
  2. There are additional cases where the CLCA procurement obligations may apply, for example:
    1. where a procurement is in support of government activities within a CLCA area; and
    2. where a procurement involves the performance of services or associated travel by the resulting contractor within a CLCA area.
    In such cases, contracting officers should seek assistance on whether CLCAs apply in accordance with subsection g. of section 9.35.1.
  3. Dollar Thresholds: A CLCA applies to any applicable procurement, regardless of dollar value.
  4. Overlaps: Some CLCAs have settlement areas that overlap with the settlement areas of other CLCAs. In these cases, the obligations of both CLCAs will apply. For example, Inuvik, Northwest Territories (NWT) is situated within the settlement areas of both the Inuvialuit Final Agreement and the Gwich'in CLCA, and so the contracting obligations of both CLCAs will apply to the portion of the procurement with deliveries to Inuvik, NWT.
  5. Urgent requirements must continue to be dealt with on a case-by-case basis, in a manner that is consistent with the provisions of the applicable CLCA. For procurements that are for pressing emergencies as defined in accordance with Treasury Board Secretariat Contracting Policy Notice 2007-4 on Non-Competitive Contracting, contracting officers should seek assistance in accordance with subsection g. of section 9.35.1.
  6. CORCAN: Procurements that are sourced through CORCAN as stores transfer orders are not subject to CLCAs
  7. Here are some examples of requirements where CLCAs would apply to the procurement:
    1. Generators for delivery to Yellowknife, Northwest Territories.
    2. Food for delivery by the contractor to a non-CLCA area, for furtherance by the client department to a CLCA area.
    3. Snowmobiles for delivery by the contractor to a non-CLCA area, where the client department would install decals to the snowmobiles and then ship them to Kuujjuaq, Quebec.
    4. An on-line map selection solution that would allow prospectors to acquire mineral claims on Crown lands in Nunavut, where the service would be made available to interested companies via the internet, and the technical infrastructure and hosting environment would be located in a non-CLCA area.
    5. An aeromagnetic survey to be performed on a CLCA area, with the only tangible deliverable being a final report to be sent to the client in a non-CLCA area.

9.35.25 Requirements Definition

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  1. Under several CLCAs, the requirements definition for a procurement must, whenever it is practical and consistent with sound procurement management:
    1. avoid artificially inflated employment skills requirements (this is consistent with PWGSC's procurement principles);
    2. give consideration to separating requirements into commodity or geographic groupings to permit smaller and more specialized firms to submit a bid/offer/arrangement.
  2. For instance, the Nunavut Land Claims Agreement states the following:

    "24.4.2 In inviting bids on government contracts in the Nunavut Settlement Area, the Government of Canada and the Territorial Government shall provide all reasonable opportunities to Inuit firms to submit competitive bids, and, in doing so, shall take, where practicable and consistent with sound procurement management, the following measures:

    1. set the date, location, and terms and conditions for bidding so that Inuit firms may readily bid;
    2. invite bids by commodity groupings to permit smaller and more specialized firms to bid;
    3. permit bids for goods and services for a specified portion of a larger contract package to permit smaller and more specialized firms to bid;
    4. design construction contracts in a way so as to increase the opportunity for smaller and more specialized firms to bid; and
    5. avoid artificially inflated employment skills requirements not essential to the fulfillment of the contract."
  3. The following CLCAs also contain similar wording:
    1. James Bay and Northern Quebec Agreement (Inuit portion);
    2. Sahtu Dene and Metis Comprehensive Land Claim Agreement (Implementation Plan);
    3. Labrador Inuit Land Claims Agreement;
    4. Nunavik Inuit Land Claims Agreement; and
    5. Eeyou Marine Region Land Claims Agreement.
  4. Contracting officers must also ensure that the procurement file contains adequate documentation on the measures taken to address any CLCA procurement obligations related to requirements definition.

9.35.30 Access to Aboriginal-owned Lands

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Comprehensive Land Claims Agreements (CLCAs) make provisions for access to aboriginal-owned lands. Contracting officers should encourage clients to liaise with the appropriate directorate(s) within Aboriginal Affairs and Northern Development Canada's Implementation Branch to determine whether the location of the contracting activity is subject to access provisions under the CLCA, and, if so, whether any access permits are required.

9.35.35 Notification of Procurement

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  1. The most common obligation is the notification of the procurement to the land claimant group(s). The following information details the Public Works and Government Services (PWGSC) Acquisitions Program procedures for Comprehensive Land Claims Agreements (CLCAs) notification.
  2. Contracting officers must fax or e-mail a copy of a notice describing the procurement to the land claimant group(s) listed for each of the CLCAs that apply to the procurement, as detailed in Annex 9.2 Notification of Procurement to CLCA Claimant Groups, and in accordance with the following paragraphs:
    1. Any notice that will be posted on the Government Electronic Tendering Service (GETS) must be sent to the applicable land claimant group(s) on the date of posting and must indicate that CLCAs apply. This procedure applies to all types of notices, for example:
      1. Notices of Proposed Procurement (NPPs);
      2. Advance Contract Award Notices (ACANs);
      3. Letters of Interest (LOIs);
      4. Price and Availability (P&A) enquiries.
    2. For procurements that will not be posted on GETS, contracting officers must send the applicable land claimant group(s) a notice about the procurement, containing the same information that an NPP, ACAN, LOI, or a P&A enquiry would have contained. In such cases, contracting officers should allow the land claimant group(s) at least 15 calendar days to submit any enquiries before awarding a contract, although the CLCAs do not specify any waiting period.
    3. Contracting officers must notify the applicable land claimant group(s) for all types of solicitation documents, including, but not limited to, the following:
      1. Request for Quotations (RFQs);
      2. Requests for Proposals (RFPs);
      3. Requests for Standing Offers (RFSOs);
      4. Requests for Supply Arrangements (RFSAs);
      5. Solicitations under Supply Arrangements; and
      6. Calls for Proposals.
    4. Notification of the procurement to the land claimant group(s) is not required for individual call-ups against a standing offer. Notification at the RFSO stage is sufficient.

9.35.40 Right of First Refusal

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  1. Dependent upon the requirement, competition for a procurement may be restricted to businesses of the applicable CLCA.
  2. For example, for the Inuit portion of the James Bay and Northern Quebec Agreement, the Agreement Respecting the Implementation of the JBNQA, Annex A (Inuit Employment and Contract Priority), Part II states:
    "8.1 Wherever practicable and consistent with sound procurement management, Canada will first solicit bids from within the Territory."
    WHERE
    "3.11 "Territory" means the area in the province of Quebec north of the 55 th parallel of latitude, as delineated in the JBNQA."
  3. Furthermore, certain agreements contain a "right of first refusal" for the provision of certain commodities, i.e., business opportunities and ventures that are contracted out with respect to Parks and the right of first refusal to any new licenses to carry on economic activities related to wildlife and tourism.
  4. Other agreements make provisions for giving CLCA beneficiaries "first consideration or first priority" in sourcing certain requirements, i.e., silviculture services, management of designated heritage sites, and first consideration in providing technical and support services for contracts related to surveying the land claims settlement area.
  5. Contracting officers with CLCA procurements related to archaeology, forestry, heritage, parks, and/or surveying should seek assistance in accordance with subsection g. of 9.35.1 General Information on Comprehensive Land Claims Agreements.

9.35.45 Evaluation Criteria

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  1. Several Comprehensive Land Claims Agreements (CLCAs) contain provisions requiring the inclusion of socio-economic evaluation criteria in the solicitation document, subject to Canada's international trade agreements (see 9.35.70 International Trade Agreements), and whenever it is practical and consistent with sound procurement management. The purpose of including socio-economic evaluation criteria is to increase the opportunities for CLCA beneficiaries to experience benefits from the procurement such as:
    1. Subcontracting to Land Claim Beneficiary Businesses
    2. Employment opportunities for Land Claim Beneficiaries
    3. Training/skills development for Land Claim Beneficiaries
    4. Existence/establishment of a supplier office location within the CLCA area
  2. The document excerpts in Annex 9.3: Comprehensive Land Claims Agreements Evaluation Criteria specifically detail that consideration of socio-economic evaluation criteria is required for the following CLCAs:
    1. James Bay and Northern Quebec Agreement - Inuit Portion
    2. Inuvialuit Final Agreement
    3. Nunavut Land Claims Agreement
    4. Sahtu Dene and Métis Comprehensive Land Claims Agreement
    5. Tlicho Land Claims Agreement
    6. Nunavik Inuit Land Claims Agreement
    7. Labrador Inuit Land Claims Agreement
    8. Eeyou Marine Region Land Claims Agreement
    In addition, solicitations subject to the Gwich'in Comprehensive Land Claims Agreement should include socio-economic evaluation criteria for the Gwich'in, whenever it is practical and consistent with sound procurement management, and subject to Canada's international trade agreements.
  3. These evaluation criteria can be used as part of the assessment along with price, best value, delivery etc. Proof of efforts and/or commitments made by suppliers should include, but not be limited to, the names of persons or companies contacted and the nature of the undertakings at the time of the submission and as applicable.
  4. Should the contracting officer decide that it is not practical and consistent with sound procurement management to include the CLCA evaluation criteria in a solicitation document, the contracting officer must document the supporting factors leading to this decision on the procurement file, preferably in the Contract Planning and Advance Approval (CPAA) document or procurement plan.
  5. The CLCA evaluation criteria should also be considered in sole source negotiations in order to maximize socio-economic opportunities for CLCA beneficiaries.

9.35.50 Methods of Solicitation

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Contracting officers must use the appropriate method of solicitation, i.e., the Government Electronic Tendering Service (GETS), telephone-buys, source lists, facsimile distribution, newspapers, or a combination of methods. Increased consideration should be given to advertising the procurement opportunity in local newspapers and/or other public venues due to the remoteness of some of the areas.

9.35.55 Solicitation Period

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A longer bidding period should be considered depending on the remoteness of some of the areas.

9.35.60 Business Directories/Lists

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  1. Under several CLCAs, the land claimant groups have to prepare and maintain lists of CLCA beneficiary firms. The business directories/lists identify the types of the goods and services the firms can furnish.
  2. For procurements posted on GETS, contracting officers should notify the CLCA beneficiary firms listed for the applicable commodities, in accordance with 4.75.35 Contacting Suppliers Directly During the Solicitation Period. For procurements not posted on GETS, contracting officers should use the firm lists to invite CLCA beneficiaries firms to submit a bid/offer/arrangement; this must not restrict the ability of any business, not on the list, to submit a bid/ offer/arrangement.
  3. For a list of Inuit businesses for the James Bay and Northern Quebec Agreement and for the Nunavik Inuit Land Claims Agreement, consult the Nunavik Regional and Private Business Directory (PDF 603 KB) - (Help on File Formats).
  4. For a list of Cree businesses for the James Bay and Northern Quebec Agreement, consult the Grand Council of the Crees telephone directory.
  5. For a list of Inuvialuit businesses in the Inuvialuit Settlement Region, consult the Inuvialuit Business List.
  6. For a list of Gwich'in businesses in the Gwich'in Settlement Area, consult the Gwich'in Business Directory.
  7. For a list of Inuit businesses in the Nunavut Settlement Area, consult the Inuit Firm Registry.
  8. For a list of Sahtu Dene and Metis businesses in the Sahtu Settlement Area, consult the Sahtu Business List.
  9. For more information on Tlicho businesses, visit the Tlicho Businesses website.
  10. "For a list of Inuit businesses in the Labrador Inuit Settlement Area, consult the Nunatsiavut Government website, click on "Departments", then click on "Education and Economic Development", then click on the appropriate business categories under "Inuit Business Directory.".

9.35.65 Comprehensive Land Claims Agreements and Procurement Strategy for Aboriginal Business

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  1. Comprehensive Land Claims Agreements (CLCAs) must not be confused with the Procurement Strategy for Aboriginal Business (PSAB). For more information on PSAB, see section 9.40 Procurement Strategy for Aboriginal Business.
  2. In certain cases, a procurement subject to CLCA contracting obligations may also be set-aside under PSAB. The procedures for both CLCAs and PSAB set-asides can be applied to the extent that the application of a PSAB set aside does not interfere with CLCA contracting obligations. However, when the two are in conflict, the CLCA contracting obligations take precedence, as further explained below.
  3. If a procurement is subject to a CLCA and that CLCA does not include a right of first refusal, the procurement can be reserved for aboriginal businesses across Canada under PSAB while still addressing the CLCA contracting obligations, including any CLCA evaluation criteria.
  4. The act of setting aside a procurement under PSAB does not, by itself, address the CLCA procurement obligations. The various procurement obligations of the applicable CLCA will still have to be considered.
  5. A solicitation subject to a PSAB set-aside that addresses CLCA evaluation criteria must clearly define what constitutes a CLCA beneficiary to avoid confusion with the definition of "aboriginal business" under PSAB.
  6. If a procurement is reserved for CLCA beneficiaries because of a right of first refusal under that CLCA, the procurement cannot also be set-aside under PSAB. For these situations, the PSAB clauses cannot be used or modified to implement the CLCA right of first refusal. Instead, seek assistance in accordance with paragraph g.i. of section 9.35.1 General Information on Comprehensive Land Claims Agreements.
  7. To help identify sourcing capacity under a PSAB set-aside, refer to 9.40.35 Sourcing of Requirements under Procurement Strategy for Aboriginal Business (PSAB) Set-asides. As with all procurements, every reasonable effort must be made to satisfy operational requirements while obtaining best value and taking into account the principles of prudence, probity and sound contracting management.

9.35.70 International Trade Agreements

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  1. Contracting officers must determine whether a procurement subject to a CLCA is also covered by an international trade agreement (ITA), e.g., NAFTA, CETA and/or WTO-AGP. (See 1.25.5 North American Free Trade Agreement (NAFTA), 1.25.11 Canada-European Union Comprehensive Economic and Trade Agreement (CETA) and 1.25.10 World Trade Organization Agreement on Government Procurement (WTO-AGP).)
  2. Except for CETA, all ITAs provide for set-asides for minority businesses, e.g. Article 1.(d) of Canada's General Notes of WTO-AGP and Article 1.(d) of Annex 1001.2b of NAFTA. However, CETA does allow for any measure for Aboriginal business, which would include setting aside for procurement for Aboriginal business.
  3. When a procurement is subject to an ITA, it can only be removed from that ITA under the provision for set-asides for minority businesses if the procurement is reserved solely for aboriginal businesses. The procurement is not considered to be set-aside from the ITAs under this provision if the procurement is also open to non-aboriginal businesses. The sole fact that a procurement is subject to a CLCA does not exempt it from the ITAs.
  4. The following are the options when a procurement is subject to both a CLCA and an ITA other than CETA:
    1. If the CLCA provides the CLCA beneficiaries with a right of first refusal for the procurement, the inclusion of that right in the procurement terms will constitute a set-aside for minority businesses under the ITAs, such that the provisions of the ITAs do not apply to the procurement.
      OR
    2. If the CLCA does not provide the CLCA beneficiaries with a right of first refusal for the procurement, the contracting officer should encourage the client department to set aside the procurement under PSAB. Setting aside the procurement under PSAB constitutes a set-aside for minority businesses under the ITAs.
      Under options i, and ii., the procurement is set aside from the ITAs for minority businesses and all CLCA contracting obligations can be addressed, including any CLCA evaluation criteria.
      OR
    3. If no right of first refusal for the procurement exists under the CLCA, and setting aside the procurement under the PSAB is not practical due to the specific requirements of the procurement, consult the Indigenous Procurement Policy and Development Division, at tpsgc.rcndgaertgsaea-ncrabclcapsab.pwgsc@tpsgc-pwgsc.gc.ca.

9.35.75 Canadian Free Trade Agreement and Agreement on Internal Trade

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Under Article 800: Aboriginal Peoples of the Canadian Free Trade Agreement (CFTA) and Article 1802: Aboriginal Peoples of the Agreement on Internal Trade (AIT), neither the CFTA nor the AIT apply to any measure adopted or maintained with respect to Aboriginal peoples. There are two ways in which the CLCAs and CFTA / AIT interact:

  1. If a procurement is reserved for CLCA beneficiaries because of a right of first refusal under that CLCA, then the contracting authority must indicate in the solicitation document and any tender notice that the procurement is set aside from the CFTA or the AIT. In this case, the entire procurement process is not subject to the CFTA or the AIT, and the procurement no longer falls under the jurisdiction of the Canadian International Trade Tribunal (CITT). This situation does not eliminate the requirement to comply with the Government Contracts Regulations; and
  2. For a procurement that is subject to the CFTA or the AIT, but not to any international trade agreements, any measure for Aboriginals, including CLCA evaluation criteria, is not subject to CITT review, although the rest of the procurement process must be conducted in compliance with the CFTA or the AIT provisions and is reviewable by CITT.

9.35.80 Notices on the Government Electronic Tendering Services

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  1. For procurements subject to CLCAs, contracting officers must insert a statement in the notice on the Government Electronic Tendering Service (GETS), indicating the applicable CLCAs.
    For example, a notice for a procurement that is subject to the Inuvialuit Final Agreement should include the following wording:
    This procurement is subject to the Inuvialuit Final Agreement.
  2. If a CLCA provides its beneficiaries with a right of first refusal for the procurement, and therefore the procurement is reserved for those CLCA beneficiaries, then the contracting officer must insert the following information in the GETS notice:
    "This procurement is reserved for beneficiaries of the following Comprehensive Land Claims Agreement (CLCA): _____(insert the applicable CLCA)) under _____(insert the applicable CLCA chapter, article and paragraph numbers)."
    Instruction to contracting officers: Insert the following sentence, if applicable:
    "This procurement is set aside from all the trade agreements under the provision each has that permits the procurement to be set aside for Aboriginal business."

9.35.85 Solicitations

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  1. Clauses W0001T to W0003D in Subsection 5.W of the Standard Acquisition Clauses and Conditions (SACC) Manual, have been developed for solicitations, contracts and standing offers that involve unspecified final delivery locations within land claims settlement areas.
  2. If a CLCA provides its beneficiaries with a right of first refusal for the procurement, and therefore the procurement is reserved for those CLCA beneficiaries, then the contracting officer must insert clause W0005T at the beginning of the solicitation.
  3. Although additional CLCA clauses are available in Subsection 5.W of the SACC Manual, contracting officers should seek assistance with these clauses in accordance with subsection g. of 9.35.1 General information on Comprehensive Land Claims Agreements.

9.35.90 Standing Offers, Supply Arrangements and As-and-When-Requested Contracts

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  1. Methods of supply such as standing offers (SOs), supply arrangements (SAs), and as-and-when-requested contracts are also affected by Comprehensive Land Claims Agreements (CLCAs) if any of the resulting contracts or tasks may be subject to CLCAs. Therefore, during the procurement planning stage, contracting officers must determine, in consultation with client departments, whether such a method of supply will need to provide for CLCAs. Examining past, present and future needs will help determine a solution that is of mutual benefit to Public Works and Government Services Canada supply divisions and their client departments.
  2. When such a method of supply will need to provide for CLCAs, various options exist:
    1. an instrument that provides for both CLCA areas and non-CLCA areas;
    2. two streams of instruments - one for CLCA areas and one for non-CLCAs; or
    3. multiple streams for various geographic or CLCA areas.
  3. If an instrument will provide for CLCAs, the applicable CLCA procurement obligations must be addressed at the RFSO/RFSA/RFP stage of the instrument. For supply arrangements, the CLCA procurement obligations also have to be addressed when issuing any bid solicitation under the SA that may be subject to CLCAs.
  4. During the planning stage of the method of supply, if it is determined that either no or few resulting contracts or tasks will be subject to CLCAs, then it may be more appropriate to issue an instrument that does not provide for CLCAs. In this case, the contracting officer must include a clear statement in the instrument detailing that deliveries cannot be made and services cannot be performed within CLCA settlement areas under any resulting contract or task authorization. If later on, the client has a specific requirement that is subject to CLCAs, and no instrument exists which addressed the obligations of the applicable CLCAs, that requirement will have to be handled as a new procurement, outside any existing instrument.
  5. Mandatory SOs/SAs: if a client's requirement is subject to CLCA contracting obligations, and no mandatory SO/SA exists which addressed the obligations of the applicable CLCA(s), the client department is exempted from having to use the mandatory SO/SA.
  6. Furthermore, with respect to PSAB, refer to 9.40.35 c.

9.35.91 SELECT

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  1. SELECT is a database of pre-approved suppliers such as architects, engineers and construction trade contractors identified by their expertise and the services they provide. It is used by Public Works and Government Services Canada (PWGSC) to invite suppliers to bid on real property services procurements up to certain thresholds. SELECT provides a systematic rotation functionality that matches the specifics of the requirement with suppliers having the required expertise that are within a geographic range. Depending on the requirement, a supplier may be given the opportunity to accept or decline the work, or multiple suppliers may be given the opportunity to compete the requirement.
  2. As the procurement obligations of Comprehensive Land Claims Agreements (CLCAs) are not addressed at the pre-approval stage within SELECT, they must be addressed at the solicitation stage. Therefore when it is determined that a requirement is subject to CLCAs, and the commodity is subject to the use of SELECT, contracting officers must choose from the following options:
    1. Not use SELECT and proceed with the requirement following the process explained in section 9.35 Comprehensive Land Claims Agreements (CLCAs). The procurement file should be documented to state that SELECT was not used as it does not address the CLCA procurement obligations at the pre-approval stage.
      or
    2. Use SELECT, refer to section 9.35 Comprehensive Land Claims Agreements (CLCAs), and follow the more tailored process described below:
      1. Requirements Definition: follow the procedures detailed in section 9.35.25 Requirements Definition.
      2. Access to Aboriginal-Owned Lands: follow the procedures detailed in section 9.35.30 Access to Aboriginal-owned Lands.
      3. Inviting Suppliers to Bid: Invite bids from the list of firms generated by SELECT and the CLCA beneficiary firm(s) listed for the applicable commodities. See section 9.35.60 Business Directories/Lists for CLCA beneficiary firm lists and for additional instructions.
      4. Notification of Procurement: In accordance with section 9.35.35 Notification of Procurement, provide notification to the claimant group(s) on the same day that the solicitation is issued. The following information should also be included in the notification to the claimant group(s):
        "This procurement is subject to the ______________________ {indicate the applicable CLCAs}.
        The source list for this solicitation, which is a list of pre-approved suppliers, was generated using SELECT. Suppliers that are beneficiaries of the ______________________ {indicate the applicable CLCAs} are also encouraged to bid.
        A copy of the solicitation can be obtained by contacting ______________________ {indicate the contracting officer’s name} at ______________________ {indicate telephone and e-mail address}.
        SELECT is a database of pre-approved suppliers such as architects, engineers and construction trade suppliers identified by their expertise and the services they provide. It is used by Public Works and Government Services Canada (PWGSC) to invite suppliers to bid on real property contracting opportunities.
        Firms can register at anytime by contacting the PWGSC support team at BASA-ASSD@tpsgc-pwgsc.gc.ca or calling at 1-800-811-1148. In addition, firms can register through the SELECT registration website."
      5. Bid Evaluation Criteria: Follow the procedures described in section 9.35.45 Evaluation Criteria. Whenever practical and consistent with sound procurement management, include the CLCA evaluation criteria in the solicitation document. Should the contracting officer decide that it is not practical and consistent with sound procurement management to include the CLCA evaluation criteria, the contracting officer must document the supporting factors leading to this decision on the procurement file.
      6. Clause: The contracting officer must include the following clause in the solicitation document and resulting contract.
        "This procurement is subject to the following Comprehensive Land Claims Agreement(s) ______________________ {indicate the applicable CLCAs}."
      7. Procurement Reporting: Follow the procedures described in section 9.35.95 Procurement Reporting for Comprehensive Land Claims Agreements to ensure that reporting on contracts subject to CLCAs is done accurately.

9.35.95 Procurement Reporting for Comprehensive Land Claims Agreements

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Contracting officers must ensure that reporting on procurements subject to Comprehensive Land Claims Agreements is done accurately, in accordance with section 7.30.15 Comprehensive Land Claims Agreements Reporting.

9.40 Procurement Strategy for Aboriginal Business

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  1. In accordance with the Procurement Strategy for Aboriginal Business (PSAB) announced on March 27, 1996, requirements designated by client departments as set aside under PSAB will be restricted to qualified Aboriginal businesses.
  2. Even though a procurement is set aside under PSAB, all applicable procurement policies and procedures must be followed.

9.40.1 Decision to Set Aside a Procurement under the Procurement Strategy for Aboriginal Business

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  1. The decision to set aside a procurement under PSAB is the responsibility of the client department.
  2. There are two types of PSAB set-asides:
    1. Mandatory Set-Asides:
      1. It is mandatory to set aside a procurement under PSAB if an Aboriginal population is the primary recipient or end user of the goods or services being procured and the value exceeds $5,000, provided that operational requirements, prudence, probity, best value and sound contracting management can be assured.
      2. In order for an Aboriginal population to be the primary recipient or end user of the goods or services being procured, delivery does not have to be directly to the Aboriginal community. For example, goods may be delivered to a government department site and later distributed to Aboriginal communities, groups or individuals.
      3. For more information and examples of what constitute a mandatory set-aside under PSAB, please refer to Aboriginal Affairs and Northern Development Canada's (AANDC) interpretation bulletin.
      4. Under ARCHIVED - TBS Contracting Policy Notice 1996-2,
        "Aboriginal Population" means
        1. an area, or community in which Aboriginal people make up at least 80 percent of the population;
        2. a group of people for whom the procurement is aimed in which Aboriginal people make up at least 80 percent of the group.
    2. Voluntary Set-Asides: Client departments may designate any procurement as being restricted exclusively to qualified Aboriginal suppliers. Contracting officers should assist client departments in meeting their performance objectives under the program, by drawing their attention to opportunities for voluntary PSAB set-asides, when qualified Aboriginal suppliers are known to exist in the marketplace.
  3. When a procurement is set aside under PSAB and no aboriginal business submitted a responsive bid/offer/arrangement, then the solicitation must be reissued, either as a set-aside once again (after the necessary adjustments to the solicitation have been made), or open to all bidders in accordance with the procedures for the applicable trade agreement(s), taking into account the relevant thresholds, and all the related applicable components, which apply to the requirement in the absence of a set-aside. This re-solicitation process will also apply when Aboriginal bids/offers/arrangements are received but a contract will not be awarded in order to avoid conflicting with sound contracting principles such as best value, prudence and probity. (See 9.40.25 Sound Contracting Principles.)
  4. PWGSC will not unilaterally declare a procurement set-aside under PSAB. However, following receipt of a requisition above $5,000, for which an Aboriginal population is the primary recipient or end user, but is not designated as a PSAB set-aside, the contracting officer should contact the client department and identify the potential omission. If the client indicates that the procurement is not to be set aside under PSAB, the file should be annotated accordingly, and the procurement may then proceed.

9.40.2 Obtaining Advice on the Procurement Strategy for Aboriginal Business

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  1. The primary source of policy advice on the Procurement Strategy for Aboriginal Business (PSAB) for Public Works and Government Services Canada contracting officers is the Policy, Advice and Aboriginal Considerations Division (PAACD). Contracting officers can contact PAACD by sending an e-mail to TPSGC.RCNDGAERTGSAEA-NCRABCLCAPSAB.PWGSC@tpsgc-pwgsc.gc.ca.
  2. Contracting officers should share with PAACD any advice on PSAB received from other sources before taking any action, in order to ensure a consistent approach to the implementation of PSAB. As well, any discrepancy in the information gathered by the contracting officer must be brought to the attention of PAACD. Contracting officers must document their files to include any advice received. The approval documents should include the rationale for any key decisions.

9.40.5 Procurement Strategy for Aboriginal Business and Comprehensive Land Claims Agreements

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Comprehensive Land Claims Agreements (CLCAs) must not be confused with the Procurement Strategy for Aboriginal Business (PSAB). For information on CLCAs, contracting officers should consult section 9.35 Comprehensive Land Claims Agreements (CLCAs). For information on how CLCAs contracting obligations and PSAB interrelate, refer to section 9.35.65 Comprehensive Land Claims Agreements and Procurement Strategy for Aboriginal Business.

9.40.10 Procurement Strategy for Aboriginal Business and Trade Agreements

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  1. All international trade agreements provide for set-asides for Aboriginal businesses:
    1. Article 1.(d) of Canada’s General Notes of the WTO-AGP: provides for any set-aside or measure (including offsets) as it relates to Aboriginal peoples or business;
    2. Article 1.(d) of Annex 1001.2b of the NAFTA: provides only for set-asides for small and minority business; and
    3. Annex 19-7 (Article 2(a)) of CETA: provides for any set-aside or measure (including offsets) as it relates to Aboriginal peoples or business.

    Therefore, a procurement set aside under the Procurement Strategy for Aboriginal Business (PSAB) is not subject to the obligations of the international trade agreements.

  2. Under Article 800: Aboriginal Peoples of the Canadian Free Trade Agreement (CFTA) and Article 1802: Aboriginal Peoples of the Agreement on Internal Trade (AIT), the CFTA and the AIT do not apply to any measure adopted or maintained with respect to Aboriginal peoples. When the procurement has been set aside for Aboriginal business under PSAB, the entire procurement process is not subject to the CFTA or the AIT, and the procurement no longer falls under the jurisdiction of the Canadian International Trade Tribunal (CITT).
  3. Contracting officers must insert SACC Manual clause A3002T in bid solicitations for procurements that have been set aside under PSAB, when the procurement would have been otherwise subject to one or more trade agreements.

9.40.15 Procurement Strategy for Aboriginal Business and Canadian Content

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  1. If the value of the procurement is equal to or greater than $25,000, PSAB and the Canadian Content Policy will be applied simultaneously.
  2. In applying the Canadian Content Policy under a set-aside procurement, it must be recognized that there are two levels of certification. The first level of certification will be to qualify the supplier(s) as eligible for consideration, i.e., a supplier must provide certification that it is an Aboriginal business.
  3. Having established that the procurement will be conducted as a PSAB set-aside, contracting officers must then apply the Canadian Content Policy in the same manner as any other procurement but in the context of the Aboriginal business supplier community. Contracting officers must determine whether there are sufficient eligible firms to carry out the procurement as solely limited (i.e., two or more Aboriginal businesses are able to provide Canadian goods or services), conditionally limited (i.e., there may be two or more Aboriginal suppliers of Canadian goods or services), or open (i.e., there is an insufficient number of Aboriginal businesses able to provide Canadian goods or services; the procurement is open to all Aboriginal businesses regardless of the origin of the goods and services supplied). (See 3.130 Canadian Content.)
  4. A bid/offer/arrangement for a set aside procurement, which includes the Canadian content provision, must be reviewed initially to determine whether the supplier has provided the necessary certificate that it is an Aboriginal business. Bids/offers/arrangements meeting this basic certification are then assessed according to the stated Canadian content criteria.

9.40.20 Subcontracting Plans

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In support of PSAB, client departments may designate that a proportion of subcontracts on projects be reserved for Aboriginal business, or that suppliers are to be encouraged through the use of incentives - e.g., additional evaluation points to hire Aboriginal businesses as subcontractors. The inclusion of Aboriginal businesses as subcontractors must be clearly identified in the solicitation as an evaluation criterion. This is permitted for procurement set-asides and offsets under CETA and the WTO-AGP, although it is prohibited under NAFTA (see section 9.40.10).

9.40.25 Sound Contracting Principles

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Fundamental to all PSAB procurements is the need to adhere to sound contracting principles. Contracting officers must always be cognizant of the principles of best value, prudence, probity, and operational requirements, in planning their procurement strategy for PSAB set-aside requirements.

9.40.30 Notification to Aboriginal Affairs and Northern Development Canada

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  1. Upon receipt and acceptance of a requisition for a PSAB set-aside procurement, contracting officers must inform Aboriginal Procurement and Business Promotion Directorate, Aboriginal Affairs and Northern Development Canada (AANDC).
  2. Notification to AANDC must be sent, by fax or e-mail, before the release of the solicitation, to:
    Aboriginal Affairs and Northern Development Canada
    Aboriginal Procurement and Business Promotion Directorate
    Telephone: 1-800-400-7677
    Fax: 819-956-9837
    E-mail: saea-psab@aandc-aadnc.gc.ca
    The notification must include the following information:
    1. estimated dollar value;
    2. description of goods/services/construction;
    3. solicitation number;
    4. solicitation closing date; and
    5. buyer (name, and phone/fax numbers).
    In instances of sole source procurements, the notice to AANDC must also include the name and address of the potential contractor.
  3. Within 15 working days after contract award, the contracting officer must advise the Aboriginal Procurement and Business Promotion Directorate of the name of the contractor, the contract number, and the total estimated value of the contract.

9.40.35 Sourcing of Requirements under Procurement Strategy for Aboriginal Business (PSAB) Set-asides

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  1. Procurements set aside under PSAB may be competitive or non-competitive according to current established government sourcing policies (see details on competitive and non-competitive at 3.10 Competitive Contracting Process and 3.15 Non-competitive Contracting Process.) Aboriginal businesses may be invited to submit a bid/offer/arrangement in accordance with Public Works and Government Services Canada (PWGSC) policies and procedures.
  2. Vendor Information Management (VIM) of PWGSC and "SELECT" systems allow for the identification of suppliers that have self-declared as being Aboriginal. The information in VIM and "SELECT" collected from supplier registrations and contract awards is useful to identify potential Aboriginal businesses for sourcing purposes, and establish source lists, regardless of commodity (goods, services, or construction), which would be subject to rotation regimes such as Automated Vendor Rotation System or "SELECT".
  3. When issuing a solicitation for a standing offer or a supply arrangement especially for a commodity falling under the mandatory commodities, the contracting officer should always, when feasible, solicit for a PSAB set-aside stream to allow client departments the possibility of contracting with Aboriginal firms if they wish to do a set-aside procurement under PSAB.
  4. When creating a standing offer or supply arrangement which will include both a source list for Aboriginal set-asides as well as a general source list, the solicitation should clearly indicate that Aboriginal suppliers who qualify for the Aboriginal source list, standing offer or supply arrangement will be automatically placed on the general source list, standing offer or supply arrangement if the procurement requirements are identical. Therefore, in the case of identical requirements, it is not necessary for Aboriginal suppliers to submit two separate bids/offers/arrangements.
  5. Contracting officers may also access other sources, such as Industry Canada's Aboriginal Business Directory for more information on Aboriginal suppliers and to identify potential Aboriginal businesses which may be invited to submit a bid/offer/arrangement. Contracting officers may also contact Aboriginal Procurement and Business Promotion Directorate, AANDC, directly by telephone at 1-800-400-7677, or by e-mail at: saea-psab@aandc-aadnc.gc.ca.
  6. When bids/offers/arrangements are solicited via the Government Electronic Tendering Service, notices (Notice of Proposed Procurement [NPP] or Advanced Contract Award Notice [ACAN]) must contain one of the following statement, prominently positioned, i.e., one of the first statements in the notice:
    "This procurement has been set aside under the federal government's Procurement Strategy for Aboriginal Business (PSAB). In order to be considered, a supplier must certify that it qualifies as an Aboriginal business as defined under PSAB and that it will comply with all requirements of PSAB." (NPP);
    OR
    "This procurement has been set-aside under the federal government's Procurement Strategy for Aboriginal Business (PSAB). Only Aboriginal businesses as defined under PSAB are eligible to challenge the proposed procurement strategy to award the contract to the named Aboriginal business." (ACAN)
  7. Contracting officers must ensure that for notices on GETS, the appropriate "Agreement Type" is selected for PSAB set-asides. For example, ABE users must indicate "Set-Aside Program for Aboriginal Business (SPAB)" in the "Trade Agreement" box of the Notice of Proposed Procurement.

9.40.40 Legal status of Aboriginal business

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The description of a business as an Aboriginal business does not affect the fact that in order to create an enforceable contract with Canada, the contract must be signed between Canada and a legal entity, which has the capacity to contract. In the event any uncertainty exists concerning the legal status of an Aboriginal business, contracting officers must consult with legal counsel to ensure that the proposed contractor is capable of signing an enforceable agreement.

9.40.45 Certification by Suppliers

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  1. For each procurement under the PSAB, suppliers will be required to provide, with their bid/offer/arrangement, a certification stating that they meet the definition of an Aboriginal business, according to the definition provided, on the date that the bid/offer/arrangement was submitted, and an undertaking that the business will continue to meet this definition throughout the life of the contract.
  2. For a procurement subject to a PSAB set-aside, the contracting officer must insert in the solicitation, the Standard Acquisition Clauses and Conditions (SACC) Manual clauses A3000T, M9030T or S3035T, and A3001T, M3030T or S3036T, as appropriate. These clauses reference Annex 9.4: Requirements for the Set-aside Program for Aboriginal Business, which sets out the definitions of an "Aboriginal business" and an "Aboriginal person".
  3. SACC Manual clauses A3000T, M9030T and S3035T contain a certification that suppliers must complete and submit with their bid/offer/arrangement. Failure by suppliers to submit this completed certification form with their bids/offers/arrangements will render the bid/offer/arrangement non-responsive.
  4. If a bidder/offeror/supplier has indicated in its bid/offer/arrangement that the Aboriginal business has six or more full-time employees, the contracting officer may request, during the evaluation or after, that a bidder/offeror/supplier submit an Owner/Employee Certification (detailed within SACC Manual clause A3001T or M3030T or S3036T), for each owner and/or full-time employee who is Aboriginal.
  5. It is not the responsibility of the contracting officer to verify the supplier's certifications. In instances where the contracting officer questions the validity of a certification, the particulars must be referred to Aboriginal Procurement and Business Promotion Directorate, AANDC, for audit by Audit Services Canada (ASC). (See 9.40.50(e).)
  6. Any resulting contract awarded on the basis of the supplier being Aboriginal must include SACC Manual clause A3000C.

9.40.50 Audits of the Bidder/Offeror/Supplier Certification

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  1. A bidder/offeror/supplier is required to certify in its bid/offer/arrangement that it is an Aboriginal business, as defined under PSAB (see Annex 9.4: Requirements for the Set-aside Program for Aboriginal Business.) The certification includes an undertaking that the business will continue to meet the criteria, which define it as Aboriginal throughout the performance of the contract. A bidder/offeror/supplier's certification that it is Aboriginal is subject to audit, both before and after contract award.
  2. pre-award audit is mandatory for requirements valued at $2M or more. To ensure that the mandatory requirement for pre-auditing is met, it is essential that the contracting officer properly notify AANDC of such requirements, as per 9.40.30(b) above, and that the two best-assessed bids/offers/arrangements be submitted to AANDC as per 9.40.50(f). The contracting officer must not award contracts of $2M or more until AANDC has confirmed eligibility of the proposed contractor.
  3. Pre-award audits of suppliers' certifications will be conducted on a random basis for requirements under $2M. AANDC will advise the contracting officer whether a requirement is subject to pre-award audit no later than the date of solicitation closing (see 9.40.30(a)). Audits of suppliers' certifications are expected to require approximately 10 working days to be completed. When timing of contract award is an issue, this should be indicated in the notification to AANDC, so that it may determine whether the auditing process can be expedited or the procurement excluded from the random selection.
  4. Pre-award audits may be requested either by the requisitioning authority, the contracting officer, or AANDC, whenever there is a doubt regarding the validity of bidders/offerors/suppliers' certifications, regardless of the total estimated expenditure of the procurement.
  5. When AANDC has advised that the requirement will be subject to a pre-award audit, the evaluation of bids/offers/arrangements will continue up to the point that the two "best assessed" bids/offers/arrangements have been identified. This information must be provided to AANDC, minus any pricing information to undertake the pre-award audit of the bidders/offerors/suppliers' certification. Upon receipt of the results of the audit, AANDC will advise the contracting officer. If the audit confirms the validity of the bidders/offerors/suppliers' certifications, award of the contract may proceed. If the audit determines that one or more of the certificates are invalid, the subject bidders/offerors/supplier(s) whose certifications have been declared invalid must be declared non-responsive, and the next-ranked bidder/offeror/supplier becomes the "recommended bidder/offeror/supplier". If the audit reveals that both certifications are invalid, the next-ranked supplier's certification must be referred to AANDC for audit until either a bid/offer/arrangement with a valid certificate is obtained, or no bidders/offerors/suppliers remain. In the event that all bidders/offerors/suppliers are eliminated on the basis of invalid certifications, the solicitation must be reissued, either as a set-aside once again, or not set aside, after consultation with the client department. Whether the contract should be awarded to the next-ranked bidder/offeror/supplier, or the solicitation reissued, is a decision that must be made on a case-by-case basis, in keeping with sound contracting principles.
  6. After contract award, the contractor's certification is subject to audit to confirm its status as an Aboriginal business as well as to confirm that required Aboriginal content is met during the life of the contract. (For more information on Aboriginal content, please refer to AANDC’s interpretation bulletin.) Audits following contract award will normally be performed on a random basis, however where contracting officers believe it to be necessary, audit of the contractor's continued status as an Aboriginal business may be requested of AANDC.
  7. If the Aboriginal business certificate is declared invalid, or if the contractor has not completed its undertaking to continue to qualify as an Aboriginal business, it may be necessary to implement civil or contractual remedies. Contracting officers should consult with Legal Services and Aboriginal Procurement and Business Promotion Directorate, AANDC, in determining the appropriate action to be taken.

9.40.55 Bid Challenge

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Bid challenges should be dealt with according to established internal supplier complaint response procedures for procurements not subject to trade agreements.

9.40.60 Procurement Reporting for Procurement Strategy for Aboriginal Business

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Contracting officers must ensure that reporting on contracts set aside under the Procurement Strategy for Aboriginal Business (PSAB) is done accurately, in accordance with 7.30.20 Procurement Strategy of Aboriginal Business Reporting.

9.45 Industrial and Regional Benefits Program

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  1. Competition remains the cornerstone of the Canadian government procurement process. It is the most efficient way of achieving both the primary and secondary goals of procurement. It gives suppliers the incentive to bring forward their best solution to the operational problem, at a competitive price, as well as to respond more effectively to requirements in support of other national objectives. Moreover, competition ensures that all qualified suppliers are afforded access to government contracts. To this end, procurement initiatives in support of regional industrial development must, to the greatest extent possible, focus on assisting Canadian firms in becoming competitive in domestic and world marketplaces.
  2. The Procurement Review Committee (PRC), in accordance with the Treasury Board (TB) Procurement Review Policy, reviews procurement strategies for goods and services over $2,000,000. For more information on the PRC and TB Procurement Review Policy, see 3.70 Procurement Review.
  3. Collectively, Industry Canada and the regional agencies/departments are responsible for the management of industrial and regional benefits.
  4. The contracting officer is responsible for the contract in all aspects, including the contractor's commitments to regional and industrial benefits that form part of the contract. Industry Canada Industrial and Regional Benefits (IRB) managers are responsible for the day-to-day requirements of the program, while the contracting officer is responsible for the management of the contract. Should there be any failure to complete the work contracted under the IRB Program, it would fall to the remedies section of the contract to resolve any problems. It is through this process, even though an aspect of the contract may be managed separately, that the contracting officer must remain cognizant of the IRB requirement working with IRB managers early in the program and throughout the delivery of the contract.

9.50 Communication Procurement

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  1. Acquisitions Branch, Public Works and Government Services Canada (PWGSC), provides all optional and mandatory procurement services related to communications to federal departments and agencies.
  2. Unlike most other mainstream PWGSC procurement divisions, the Communication Procurement Directorate operates on cost recovery, charging a fee for its procurement services in the areas of advertising, public opinion research, media monitoring, printing, audio-visual production (including film, video and multi media), event management, expositions and exhibits, graphic design, planning, writing and editing, and other communications services.  The fee is based on the value of the contract, the call-up or the work authorization, and any amendments that increase the value.
    For more information on communication procurement, visit the Communication Procurement websiteThe information is only accessible to federal government department and agency employees..

9.55 Canadian Commercial Corporation

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This section provides information on the roles and responsibilities of Canadian Commercial Corporation (CCC) and PWGSC and the Memorandum of Understanding between PWGSC and CCC.

9.55.1 General Information on Canadian Commercial Corporation Contracts

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  1. The CCC is a Crown corporation of the Government of Canada and acts as Canada's international contracting and procurement agency. CCC reports to Parliament through the Minister of International Trade under Schedule III Part I of the Financial Administration Act.
  2. The CCC work mandate is to assist in the development of trade between Canada and other countries in areas where there is a clear role for the federal government. CCC helps foreign government buyers benefit from Canada's export capabilities through the negotiation and execution of government-to-government contracts. CCC accomplishes this by building unique relationships and maintaining international contracting and procurement expertise. For more information about CCC, contracting officers may visit the CCC website.
  3. CCC focuses on sectors where there is a clear role for government: operating in sectors that are sensitive or are outside of the World Trade Organizations' disciplines, such as defence, and where foreign governments require additional capacity to undertake complex and timely procurements, namely in emerging and developing country markets.
  4. CCC offers two contracting options: by selling to foreign governments, taking on the role of prime contractor with a Canadian-based supplier; and by buying for foreign governments, taking on the role of a procurement agent and sourcing Canadian goods and services.
  5. By agreement, the CCC is the prime contractor on all direct United States (U.S.) government contracts (over $150,000) with Canadian-based suppliers. CCC, in turn, subcontracts with the appropriate supplier. CCC guarantees to the U.S. government all commitments, obligations and covenants of CCC in connection with any contract or order issued to them.
  6. Acquisitions Program, PWGSC, provides contracting, contract management and other contract support services related to CCC requirements as presented in the Memorandum of Understanding (MOU) signed between CCC and PWGSC, a copy of which is held by PWGSC’s Price Support Directorate (PSD).

9.55.5 Subcontracting

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This section was removed from the Supply Manual as a result of a review of sections referencing the Canadian Commercial Corporation (CCC). For reference purposes, section 9.55.5 is available in the Supply Manual ArchiveThe information is only accessible to federal government department and agency employees., version 2016-2.

9.55.10 Memorandum of Understanding

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CCC requirements must be carried out in accordance with the Memorandum of Understanding (MOU) signed between PWGSC and CCC, which outlines the services to be provided by PWGSC and the responsibilities of both organizations. A copy of the latest version of the MOU is held by PWGSC’s Price Support Directorate (PSD).

9.55.15 Certification and Signing Authorities

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Specific certification and signing authorities apply to CCC contracting documents. For more information, refer to 6.4.2. Annex: Contracting Limits including Exceptional Authorities and the Miscellaneous Approval and Signing Authority Limits pertaining to CCCThe information is only accessible to federal government department and agency employees. on GCpedia.

9.60 Public–Private Partnership (P3) procurements

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  1. A Public-Private Partnership (P3) is defined as a long-term contractual relationship between a public authority and the private sector that involves the following:
    1. Provision of goods or services to meet a defined output specification (i.e. defining what is required, rather than how it is to be done);
    2. Integration of multiple project phases (e.g. design, construction, finances, operations);
    3. Transfer of certain level of risk to the private sector, which is anchored with private sector capital at risk; and
    4. A performance-based payment mechanism.
  2. Budget 2011 presented the Government desire for Canada to be a leader in P3. The Budget introduced new measures that made it mandatory for departments and agencies to evaluate the feasibility of delivering infrastructure projects through a P3 procurement approach. Specifically Budget 2011 states:
    "Going forward, federal departments and agencies will be required to evaluate the potential for using a P3 for large federal capital projects. All infrastructure projects creating an asset with a lifespan of at least 20 years and having a capital cost of $100 million or more, will be subjected to a P3 Screen to determine whether a P3 may be a suitable procurement option. Should the assessment conclude that there is P3 potential, the procuring department will be required to develop a P3 proposal among possible procurement options."
  3. Furthermore, Budget 2011 also encourages federal organizations to explore the possibility of using the P3 procurement approach for other types of projects, such as information technology (IT) infrastructure projects. This therefore compels federal departments and agencies to consider the use of P3s in all procurement projects, including those with capital costs less than $100 million dollars or with a lifespan of less than 20 years.
  4. Innovative practices, such as P3s, should be considered in options explored to source a project. Practices could include, for example, the bundling of smaller planned projects.
  5. Supporting resources: More information on the concept of P3s and how it has worked in the Canadian federal context can be found in the Report on the State of Comptrollership in the Government of Canada. The Standing Committee on Government Operations and Estimates has produced a report on P3s titled Public-Private Partnerships: A Tool in The Tool Box, and Treasury Board has issued a Guideline to Implementing Budget 2011 Direction on Public-Private Partnerships.

9.60.5 Public–Private Partnerships delivery models

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  1. Public–Private Partnerships (P3s) can take a number of different forms based on client needs, availability of funding, expertise available, risks associated and strategic considerations. The project urgency and timeline may also impact the form of the P3.
  2. The P3 delivery models are:
    1. Design-Build-Finance (DBF);
    2. Design-Build-Finance-Maintain (DBFM);
    3. Design-Build-Finance-Operate (DBFO); or
    4. Design-Build-Finance-Operate-Maintain (DBFOM).
  3. Using the DBF delivery model, the private sector is responsible for designing, building, and financing the construction.
  4. Using the other P3 delivery models, the private sector designs, builds, finances, maintains and possibly operates the asset(s) to predetermined output specifications.
  5. Unlike traditional procurement methods, where Canada funds projects internally and awards separate contracts to one or more firms for the design, construction, operation and maintenance, P3s draw upon private sector financing and are governed by a single performance-based contract called a project agreement that integrates the above models.

9.60.10 Federal roles and responsibilities in Public–Private Partnerships

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  1. Treasury Board Secretariat (TBS): TBS officials have both a challenge and advisory role on relevant supporting documentation such as the P3 Screen, risk analysis and Value for Money (VFM) analysis.
  2. PPP Canada Inc.: In 2008, the Government of Canada established PPP Canada Inc., a federal Crown corporation, to advance federal efforts to increase the effective use of P3s in Canada. PPP Canada Inc.'s role is to provide advice and expertise to departments and agencies regarding P3s. It has also developed many tools in support of P3 project planning and assessment activities.
  3. Public Works and Government Services Canada (PWGSC): For PWGSC projects, the Department is accountable for project screening, options analysis and the procurement process. PWGSC is also responsible for recommending the most appropriate delivery model for each PWGSC initiative. While benefit can be derived from the advice of external experts, including PPP Canada Inc., accountability remains with PWGSC.
    1. Real Property Branch (RPB) – P3 Development and Advisory Services, P3 National Center of Expertise (P3 NCOE):
      1. The P3 NCOE's role is to provide PWGSC with expertise, advice and functional guidance to fully assess, and as required, develop P3 projects.
      2. Where RPB is the project authority, involvement of the P3 NCOE is mandatory.
      3. Where Acquisitions Program is the procurement authority on behalf of another department or agency, the involvement of the P3 NCOE is optional (joint client and operational sector's decision).
      4. For projects originating within RPB, third party financial analysis (i.e., VFM) will be validated according to existing RPB procedures.
      5. For PWGSC projects outside of RPB, validation of financial analysis, if required, may be done by using a third party consultant.
      6. Supporting resources can be found in the Directive on Real Property Branch Obligations to Consider Public-Private PartnershipsThe information is only accessible to federal government department and agency employees..
    2. Acquisitions Program (AP)
      1. As the common service provider for acquisition services, AP will act as the procurement authority for client departments' projects that are over their delegated authority as it would for any other procurement method.
      2. AP's involvement should start early in the planning of P3 procurements.
      3. Other government departments are responsible for their choice of procurement method and supporting analysis, however, should AP be identified as the procurement authority, validation of financial analysis must be confirmed.

9.60.15 Public–Private Partnership screening

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  1. The Public–Private Partnership (P3) screen forms a part of the early process of narrowing the options. Once the requirement has been identified, organizations can determine whether a P3 is a viable option for further consideration. It is important to screen early to ensure that the activities through the planning process are appropriate.
  2. PPP Canada Inc. has developed a P3 Screening Matrix and supporting guide that must be used by departments and agencies when the project meets Budget 2011 criteria. Considerations that are explored through the P3 screen include, but are not limited to the following:
    1. private sector interest and capacity;
    2. asset characteristics and size;
    3. time horizon;
    4. public acceptance or interest;
    5. opportunity to transfer risk;
    6. performance specifications;
    7. innovation;
    8. organizational capacity;
    9. financial or funding considerations.

9.60.20 Value for money

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  1. In the Government of Canada, Public–Private Partnerships (P3s) are governed by various Treasury Board policies and their associated standards and directives. Ensuring value for money in the management of assets and acquired services is a guiding principle of the framework and its associated policy instruments.
  2. Deputy heads are accountable for ensuring that proper due diligence is conducted and that investment decisions demonstrate value for money in line with the principles outlined in Treasury Board policies
  3. Once a P3 has been identified as a potential procurement method for further considerations through the P3 screen, value for money will be the determining factor for selecting the preferred method.
  4. Value for money analysis essentially represents a risk-adjusted comparison of the costs and benefits of different investment options. It is an iterative process that takes place throughout the initial planning and identification and project definition stages of the planning process. This analysis is based on significant input from the project team and client who are most familiar with Government of Canada and project-specific requirements.
  5. Internal and external specialty subject matter experts with financial or technical knowledge and experience are best positioned to support an objective assessment and consideration of current market trends.
  6. The decision as to whether or not to proceed with a P3 considers the analysis of program requirements, strategic considerations as well as project-specific qualitative, quantitative, and risk factors.
  7. The recommendation to proceed or not with a P3 is prepared by Government of Canada officials, taking into consideration input from internal and external subject matter experts.

9.60.25 Stages in Public–Private Partnership procurement process

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  1. Even though it is important for Public Works and Government Services' Acquisitions Program (AP) to be involved early in the process, many of the steps set out below would have already been processed by the client prior to AP receiving the requisition. Since each project has different objectives and timelines, some of these steps may need to be modified accordingly.
  2. Before using a Public-Private Partnership (P3) screen or undertaking any analysis of options, departments and agencies should ensure that the organizational needs have been clearly defined. A needs analysis and a preliminary options analysis are also to be included as part of the business case.
  3. Treasury Board Secretariat views P3s as having the following stages:
    1. Initial Planning and Identification
      1. Preplanning
        • Needs analysis
        • Feasibility analysis
        • P3 screening
        • Decision PointP3 identified as a potential option through screen
      2. Options Analysis
        • Potential indication of market interest or issue a Request For Interest
        • Project complexity and risk assessment
        • Business Case
        • Preliminary value for money analysis
        • Decision PointP3 identified as preferred option in the initial value for money analysis
        • Analysis of advisory service requirements
        • Develop project schedule
        • Develop project charter
        • Plan for competitive process
    2. Project Definition
      • Develop output specifications
      • Develop project agreement
      • Develop payment mechanism
      • Develop competitive process documents
      • Update value for money analysis
    3. Project implementation
      1. Competitive Process
        • Issue request for qualifications
        • Issue request for proposals to qualified bidders
        • Engage in collaborative dialogue with bidders
        • Refine project agreement accordingly
        • Proposal evaluation
        • Recommendation of selected proposal
        • Revise value for money analysis with selected proposal information
        • Decision pointP3 identified as preferred option through updated value for money analysis.
      2. Implementation
        • Finalize offer with selected bidder
        • Financial close
        • Partners enter into contract
        • Design, construct, and commission
        • Contract management and monitoring

9.60.30 Public–Private Partnership procurements - Key differences

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If a Public–Private Partnership (P3) is chosen as the preferred delivery option, many of the steps in a typical procurement process are undertaken. This includes a Request for Qualification (RFQ), Request for Proposal (RFP) and response and proposal evaluations. Consideration should also be given to issuing a Letter of Interest (LOI) or a Request for Information (RFI). Information sessions, Industry Engagement activities and site visits will most likely be required. However, some elements of the P3 process may differ from traditional procurement processes, for example:

  1. A short list of qualified bidders is often established as a result of the RFQ. Limiting the procurement process to only qualified bidders will require the proper approvals (as part of the procurement plan).
  2. Emphasis is given to output-based specifications/requirements.
  3. An honorarium can be provided to the unsuccessful bidders who submitted a compliant bid at the RFP stage. This is subject to approvals (as part of the procurement plan).
  4. Proposals can be brought by consortia made up of different private sector firms rather than an individual company. The consortia often have international, national and local representation.
  5. Proposals are traditionally based on high-level designs rather than the completed designs found in traditional procurement.
  6. Commercially confidential meetings involve many face-to-face sessions with each pre-qualified consortium. These meetings help ensure that the public sector's needs are well understood. Due diligence must be carried out to ensure information is released simultaneously to all involved parties. These meetings are typically overseen by a Fairness Monitor.
  7. Given their complexity, P3s require significant involvement of third-party advisors.
    1. The P3 National Center of Expertise can assist in obtaining support for Real Property Branch projects and other related projects.
    2. Within the Acquisition Branch, the Contract Cost Analysis, Audit and Policy Directorate should be involved in any P3 project discussion regarding an RFQ bidder's financial capacity evaluation.
  8. There is a single project agreement that integrates phases of the project (design, build, finance, operations and maintenance) over a 25-30 year period. A draft project agreement is included as part of the RFP and refined with the private sector's input during the procurement process.
  9. Procurement is completed upon the successful bidder achieving financial close and subsequent signing of the project agreement. The next phase is traditionally the simultaneous design and construction, which paves the way for subsequent phases such as operation, occupation or delivery for the duration of the project agreement.

9.60.35 Public–Private Partnership Treasury Board approvals

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  1. Public–Private Partnerships (P3s) may require a variety of Treasury Board (TB) approvals, including project approval, expenditure authority, contract approval, and the authority to enter into a real property transaction.
  2. These approvals depending on their particular details may be requested through TB submissions.
  3. Treasury Board Secretariat should be consulted early in the planning process and regular meetings should be scheduled with central agencies to identify the authorities required, to seek advice, and explain the complexities of the project.
  4. It should be noted that in the process of reviewing TB submissions, the Secretariat monitors policy compliance and may request supporting information from departments and agencies accordingly.

9.60.40 Public–Private Partnership project team

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  1. The size and magnitude of Public-Private Partnerships require a multitude of public sector skill sets. Subject matter experts from the public sector are supported by a range of private sector experts (i.e., legal, financial, procurement, fairness/integrity and technical advisors).
  2. Typically, a dedicated team is brought together to coordinate all project activities, including planning, developing performance specifications, communications, procurement as well as oversight during design and construction.
  3. A dedicated project team should be composed at the on-set of the project approval, with clearly defined roles and responsibilities for each team member.
  4. Experts from the private sector can form part of this team and should this be the case, a confidentiality agreement must be part of the working team agreement.

9.60.45 Payments in Public–Private Partnerships

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  1. Depending on the Public–Private Partnership (P3) project, the government may not issue any payments until the project is completed and certified by an independent certifier.
  2. Another approach is to provide milestone payments.
  3. In a P3, it is the private sector's responsibility to secure financing; this is often a combination of debt and equity financing.
  4. Once the asset is ready for use or the service has been delivered to a level of certified satisfaction, the government initiates payment to the private partner, as outlined in the project agreement.
  5. Payments may be subject to a holdback provision or liquidated damages (penalties) should the private partner not fully meet the obligations as outlined in the project agreement's predetermined performance specifications.
  6. For long term projects where operations and maintenance are an integral part of the project, payments are usually made on a monthly or quarterly basis, following in-service commencement, over the term of the Agreement.

Annex 9.1: Memorandum of Understanding Between Public Works and Government Services Canada and CORCAN

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The Memorandum of Understanding between Public Works and Government Services Canada and CORCAN (as a supplier) expired; therefore this section has been deleted from the Supply Manual. General information about the process has been updated and is provided in section 9.30.10 Implementation.

For reference purpose only, Annex 9.1 is available in the Supply Manual ArchiveThe information is only accessible to federal government department and agency employees., Version 2014-4.

Annex 9.2: Notification of Procurement to Comprehensive Land Claims Agreement Claimant Groups

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(See 9.35.35 Notification of Procurement)

James Bay and Northern Quebec Agreement (JBNQA)

Inuit Portion of JBNQA

Makivik Corporation
1111 Dr. Frederik-Philips Blvd., 3rd Floor
St-Laurent, QC H4M 2X6
Telephone: 514-745-8880
Facsimile: 514-745-3700

Makivik Corporation
P.O. Box 179
Kuujjuaq, QC J0M 1C0
Telephone: 819-964-2925
Facsimile: 819-964-0458

Cree Portion of JBNQA

Crees of Oujé-Bougoumou
203 Opemiska Meskino, Box 1165
Oujé-Bougoumou, QC G0W 3C0
Attention: Economic Development Officer
Telephone: 418-745-2519
Facsimile: 418-745-3544

Grand Council of the Crees (of Québec)
81 Metcalfe Street, suite 900
Ottawa, ON K1P 6K7
Telephone: 613-761-1655
Facsimile: 613-761-1388

Naskapi Portion of JBNQA

Naskapi Development Corporation
120-1000 St-Jean-Baptiste Avenue
P.O. Box 5023
Kawawachikamach, QC G2E 5G5
Telephone: 418-871-5100
Facsimile: 418-871-5254

Naskapi Nation of Kawawachikamach
P.O. Box 5111
Kawawachikamach, QC G0G 2Z0
Telephone: 418-585-2686
Facsimile: 418-585-3130

Inuvialuit Final Agreement

Inuvialuit Development Corporation
3rd Floor, Inuvialuit Corporate Centre
107 MacKenzie Road
P.O. Bag # 7
Inuvik, NT X0E 0T0
Telephone: 867-777-7000
Facsimile: 867-777-3256
email: info@inuvialuit.com

Gwich'in Comprehensive Land Claim Agreement

Gwich'in Tribal Council
P.O. Box 1509
Inuvik, NT X0E 0T0
Telephone: 867-777-7900
Facsimile: 867-777-7919

Nunavut Land Claims Agreement

Nunavut Tunngavik Incorporated
Policy and Planning Division
P.O. Box 638
Iqaluit, NU X0A 0H0
Telephone: 1-888-646-0006
Facsimile: 867-975-4949

Qikiqtani Inuit Association
P.O. Box 1340
Iqaluit, NU X0A 0H0
Telephone: 867-975-8400 or 1-800-667-2742
Facsimile: 867-979-3238
email: info@qia.ca

Qikiqtaaluk Corporation
P.O. Box 1228
Iqaluit, NU X0A 0H0
Telephone: 867-979-8400
Facsimile: 867-979-8433

Kakivak Association
P.O. Box 1419
Iqaluit, NU X0A 0H0
Telephone: 867-979-0911 or 1-800-561-0911
Email: info@kakivak.ca (Note: Notifications to be sent by e-mail only)

Kivalliq Inuit Association
P.O. Box 340
Rankin Inlet, NU X0C 0G0
Telephone: 867-645-5725 or 1-800-220-6581
Email: reception@kivalliqinuit.ca (Note: Notifications to be sent by e-mail only)

Sakku Investments Corporation
P.O. Box 188
Rankin Inlet, NU X0C 0G0
Telephone: 867-645-2805
Facsimile: 867-645-2063

Nunasi Corporation
P.O. Box 1559
Iqaluit, NU X0A 0H0
Telephone: 867-979-2175 or 867-979-2160
Facsimile: (867) 979-3099 (Note: Notification by email is preferred)
email: malaya@nunasi.com

Kitikmeot Inuit Association
Lands Division
P.O. Box 360
Kugluktuk, NU X0B 0E0
Telephone: 867-982-3310
Facsimile: 867-982-3311

Umbrella Final Agreement of the Council for Yukon Indians

Council of Yukon First Nations
2166 – 2nd Avenue
Whitehorse, YT Y1A 4P1
Telephone: 867-393-9200
Facsimile: 867-668-6577
email: reception@cyfn.net

Champagne and Aishihik First Nations Final Agreement

Champagne and Aishihik First Nations
Box 5310
Haines Junction, YT Y0B 1L0
Telephone: 867-634-4200
Facsimile: 867-634-2108
email: vinnes@cafn.ca

Little Salmon/Carmacks First Nation Final Agreement

Little Salmon/Carmacks First Nation
P.O. Box 135
Carmacks, YT Y0B 1C0
Telephone: 867-863-5576
Facsimile: 867-863-5710
email: info@lscfn.ca

First Nation of Nacho Nyak Dun Final Agreement

Nacho Nyak Dun First Nation
P.O. Box 220
Mayo, YT Y0B 1M0
Telephone: 867-996-2265
Facsimile: 867-996-2267
email: main@nndfn.com

Selkirk First Nation Final Agreement

Selkirk First Nation
P.O. Box 40
Pelly Crossing, YT Y0B 1P0
Attn: Betty Baptiste, Personnel Officer
Telephone: 867-537-3331
Facsimile: 867-537-3902
email: GillB@selkirkfn.com

Teslin Tlingit Council Final Agreement

Teslin Tlingit Council
Box 133
Teslin, YT Y0A 1B0
Telephone: 867-390-2532
Facsimile: 867-390-2204
email: admin@ttc-teslin.com

Vuntut Gwitchin First Nation Final Agreement

Vuntut Gwitchin First Nation
P.O. Box 94
Old Crow, YT Y0B 1N0
Telephone: 867-966-3261
Facsimile: 867-966-3800
email: reception@vgfn.net

Tr'ondëk Hwëch'in Final Agreement

Tr'ondëk Hwëch'in First Nation
P.O. Box 599
Dawson City, YT Y0B 1G0
Telephone: 867-993-7100
Facsimile: 867-993-6553
email: reception@trondek.ca

Ta'an Kwach'an Council Final Agreement

Mundessa Development Corporation
117 Industrial Road
Whitehorse, YT Y1A 2T8
Telephone: 867-668-3613
Facsimile: 867-667-4295
email: admin@taan.ca

Kluane First Nation Final Agreement

Kluane First Nation
P.O. Box 20
Burwash Landing, YT Y0B 1V0
Telephone: 867-841-4274
Facsimile: 867-841-5900
email: reception@kfn.ca

Kwanlin Dun First Nation Final Agreement

Kwanlin Dun First Nation
35 McIntyre Drive
Whitehorse, YT Y1A 5A5
Telephone: 867-633-7800
Facsimile: 867-668-5057
email: reception@kwanlindun.com

Carcross/Tagish First Nation Final Agreement

Carcross/Tagish First Nation
P.O. Box 130
Carcross, YT Y0B 1B0
Telephone: 867-821-4251
Facsimile: 867-821-4802
email: reception@ctfn.ca

Sahtu Dene and Metis Comprehensive Land Claim Agreement

Déline District Land Corporation
P.O. Box 156
Déline, NT X0E 0G0
Attention: Christine Firth
Telephone: 867-589-8100
Facsimile: 867-589-8101
email: dlc_executivedirector@gov.deline.ca

K’asho Gotine District Land Corporation
P.O. Box 18
Fort Good Hope, NT X0E 0H0
Attention: Jacinta Grandjambe
Telephone: 867-598-2519
Facsimile: 867-598-2437
email: jacintag@yamoga.ca

Sahtu Secretariat Incorporated
P.O. Box 155
Déline, NT X0E 0G0
Attention: Ruth Ann Elemie, Executive Director
Telephone: 867-589-4719
Facsimile: 867-589-4908
email: ruth_ann_elemie@gov.deline.ca

Tulita District Land Corporation
P.O. Box 63
Tulita, NT X0E 0K0
Attention: Judith Wright Bird, Executive Director
Telephone: 867-588-3734
Facsimile: 867-588-4025
email: jwright@tulitalandcorp.ca

Labrador Inuit Land Claims Agreement

Nunatsiavut Government
12 Sandbanks Road
P.O. Box 70
Nain, NL A0P 1L0
Telephone: 709-922-2942
Facsimile: 709-922-2931

Tlicho Land Claims Agreement

Tlicho Government
P.O. Box 412
Behchoko, NT X0E 0Y0
Telephone: 867-392-6381
Facsimile: 867-392-6389

Nunavik Inuit Land Claims Agreement

Makivik Corporation
1111 Dr. Frederik-Philips Blvd., 3rd Floor
St-Laurent, QC H4M 2X6
Telephone: 514-745-8880
Facsimile: 514-745-3700

Makivik Corporation
P.O. Box 179
Kuujjuaq, QC J0M 1C0
Telephone: 819-964-2925
Facsimile: 819-964-0458

Annex 9.3: Comprehensive Land Claims Agreements Evaluation Criteria

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(See 9.35.45 Evaluation Criteria)

  1. James Bay and Northern Quebec Agreement (JBNQA)- Inuit Portion
    The Agreement Respecting the Implementation of the JBNQA, Annex A, Part II (Inuit Employment and Contract Priority) Article 7.0 states,
    "Whenever practicable and consistent with sound procurement management, all of the following criteria, or as many as may be appropriate with respect to any particular government contract, shall be included in the bid evaluation criteria established by Canada for the awarding of government contracts in the Territory:
    1. the contribution by Inuit in carrying out the contract, which will include, but shall not be limited to, the employment of Inuit labour, the engagement of Inuit professional services or the use of Inuit suppliers;
    2. the existence or creation of permanent head offices, administrative offices or other facilities in the Territory; and,
    3. the undertaking of commitments, under the contract, with respect to on-the-job training or skills development for the Inuit."
  2. Inuvialuit Final Agreement
    Treasury Board Contracting Policy Notice 1997-8, Section 2, paragraph 6.00 states:
    "When establishing bid evaluation criteria for the awarding of government contracts, and whenever practicable and consistent with sound procurement management, contracting authorities should consider the potential contribution of the Inuvialuit in carrying out the contract. This may include, as appropriate:
    1. the employment of Inuvialuit, the engagement of Inuvialuit professional services and the use of Inuvialuit suppliers,
    2. the creation of administrative offices or other facilities in the Inuvialuit Settlement Region,
    3. the undertaking of commitments, under the contract, with respect to related on-the-job training or skills development for Inuvialuit."
  3. Nunavut Land Claims Agreement
    Article 24.6.1 of the Nunavut Land Claims Agreement states,
    "Whenever practicable, and consistent with sound procurement management, and subject to Canada's international obligations, all of the following criteria, or as many as may be appropriate with respect to any particular contract, shall be included in the bid criteria established by the Government of Canada for the awarding of its government contracts in the Nunavut Settlement Area:
    1. the existence of head offices, administrative offices or Other facilities in the Nunavut Settlement Area;
    2. the employment of Inuit labour, engagement of Inuit professional services, or use of suppliers that are Inuit or Inuit firms in carrying out the contracts; or
    3. the undertaking of commitments, under the contract, with respect to on-the-job training or skills development for Inuit."
  4. Sahtu Dene and Métis Comprehensive Land Claims Agreement
    The Implementation Plan for the Sahtu Dene and Metis Comprehensive Land Claim Agreement, Annex A, Project 12-3 states:
    "Whenever practicable and consistent with sound procurement management, and subject to Canada's international obligations, all of the following criteria, or as many as may be appropriate with respect to any particular contract, shall be included in the bid criteria for the awarding of government contracts in the Sahtu settlement area:
    1. the existence or creation of head offices, administrative offices or other facilities in the Sahtu settlement area;
    2. the employment of participants labour, engagement of participants professional services, or use of suppliers that are participants or Sahtu Dene and Metis firms in carrying out the contract; or
    3. the undertaking of commitments, under the contract, with respect to on-the-job training or skills development for the participants."
  5. Tlicho Land Claims Agreement
    The Tlicho Agreement Implementation Plan, Annex A, Sheet 26-3, Article 2, Planning Assumptions, states:
    "In order to stimulate socio-economic benefits through the procurement process, and whenever practicable and consistent with sound procurement practices, and subject to Canada's international obligations, all of the following criteria, or as many as may be appropriate with respect to any particular contract, shall be included in the bid evaluation criteria for the awarding of government contracts which are wholly or partly in Môwhì Gogha Dè Nîîtåèè (NWT):
    1. the inclusion of an Aboriginal Benefits Plan which will assist with socio-economic development projects which are wholly or partly in Môwhì Gogha Dè Nîîtåèè (NWT); or
    2. the employment of Tlicho First Nation labour, engagement of Tlicho First Nation professional services, or use of suppliers that are Tlicho which can act as sub-contractors in assisting with the carrying out of the contract; or
    3. the undertaking of commitments, under the contract, with respect to on-the-job training or skills development for Tlicho Citizens."
  6. Nunavik Inuit Land Claims Agreement
    Article 13.3.4 of the Nunavik Inuit Land Claims Agreement states,
    "Whenever practicable and consistent with sound procurement management, and subject to Canada's international obligations, all of the following criteria, or as many as may be appropriate with respect to any particular contract, shall be included in the bid criteria established by the Government of Canada for the awarding of its government contracts for the procurement of goods and services in the Nunavik Marine Region (NMR):
    1. the existence of head offices, administrative offices or other facilities in the NMR;
    2. the employment of Nunavik Inuit labour, engagement of Nunavik Inuit professional services, or use of suppliers that are Nunavik Inuit or Nunavik Inuit enterprises in carrying out the contracts; and
    3. the undertaking of commitments, under the contract, with respect to on-the-job training or skills development for Nunavik Inuit."
  7. Labrador Inuit Land Claims Agreement
    Article 7.10.4 of the Labrador Inuit Land Claims Agreement states,
    "Whenever practicable and consistent with sound procurement practices, and subject to Canada's international obligations, the following criteria, or as many as may be appropriate with respect to any particular contract, shall be included in the bid criteria established by the Government of Canada for the awarding of Government of Canada contracts for the procurement of goods and services in the Labrador Inuit Settlement Area:
    1. the existence of the head office, administrative offices or other facilities in the Labrador Inuit Settlement Area;
    2. the employment of Inuit labour, engagement of Inuit professional services or use of suppliers that are Inuit Businesses in carrying out the contracts; and
    3. the undertaking of commitments, under the contract, with respect to on the job training or skills development for Inuit."
  8. Eeyou Marine Region Land Claims Agreement
    Article 21.3.4 of the Eeyou Marine Region Land Claims Agreement states,
    "Whenever practicable and consistent with sound procurement management, and subject to Canada's international obligations, all of the following criteria, or as many as may be appropriate with respect to any particular contract, shall be included in the bid criteria established by Government for the awarding of its Government Contracts for the procurement of goods and services in the Eeyou Marine Region (EMR):
    1. the existence of head offices, administrative offices or other facilities in Eeyou Istchee;
    2. the employment of Cree labour, engagement of Cree professional services, or use of suppliers that are Cree or Cree Enterprises in carrying out the contracts; and
    3. the undertaking of commitments, under the contract, with respect to on-the-job training or skills development for Crees."

Annex 9.4: Requirements for the Set-aside Program for Aboriginal Business

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(See 9.40.45 Certification by Suppliers)

  1. Who is eligible?
    1. An Aboriginal business, which can be:
      1. a band as defined by the Indian Act
      2. a sole proprietorship
      3. a limited company
      4. a co-operative
      5. a partnership
      6. a not-for-profit organization
      in which Aboriginal persons have at least 51 percent ownership and control,
      OR
    2. A joint venture consisting of two or more Aboriginal businesses or an Aboriginal business and a non-Aboriginal business(es), provided that the Aboriginal business(es) has at least 51 percent ownership and control of the joint venture.
    When an Aboriginal business has six or more full-time employees at the date of submitting the bid, at least thirty-three percent of them must be Aboriginal persons, and this ratio must be maintained throughout the duration of the contract.
    The supplier must certify in its submitted bid that it is an Aboriginal business or a joint venture constituted as described above.
  2. Are there any other requirements attached to suppliers in the Set-Aside Program for Aboriginal Business?
    Yes
    1. In respect of a contract, (goods, service or construction), on which a supplier is making a proposal which involves subcontracting, the supplier must certify in its bid that at least thirty-three percent of the value of the work performed under the contract will be performed by an Aboriginal business. Value of the work performed is considered to be the total value of the contract less any materials directly purchased by the contractor for the performance of the contract. Therefore, the supplier must notify and, where applicable, bind the subcontractor in writing with respect to the requirements that the Aboriginal Set-Aside Program (the Program) may impose on the subcontractor or subcontractors.
    2. The supplier's contract with a subcontractor must also, where applicable, include a provision in which the subcontractor agrees to provide the supplier with information, substantiating its compliance with the Program, and authorize the supplier to have an audit performed by Canada to examine the subcontractor's records to verify the information provided. Failure by the supplier to exact or enforce such a provision will be deemed to be a breach of contract and subject to the civil consequences referred to in this document.
    3. As part of its bid, the supplier must complete the Certification of Requirements for the Set-Aside Program for Aboriginal Business(certification) stating that it:
      1. meets the requirements for the Program and will continue to do so throughout the duration of the contract;
      2. will, upon request, provide evidence that it meets the eligibility criteria;
      3. is willing to be audited regarding the certification; and
      4. acknowledges that if it is found NOT to meet the eligibility criteria, the supplier shall be subject to one or more of the civil consequences set out in the certification and the contract.
      See Standard Acquisition Clauses and Conditions(SACC) Manual clauses A3000T , M9030T or S3035T, as appropriate.
  3. How must the business prove that it meets the requirements?
    1. It is not necessary to provide evidence of eligibility at the time the bid is submitted. However, the business should have evidence of eligibility ready in case it is audited.
    2. The civil consequences of making an untrue statement in the bid documents, or of not complying with the requirements of the Program or failing to produce satisfactory evidence to Canada regarding the requirements of the Program, may include: forfeiture of the bid deposit; retention of the holdback; disqualification of the business from participating in future contracts under the program; and/or termination of the contract. In the event that the contract is terminated because of an untrue statement or non-compliance with the requirements of the Program, Canada may engage another contractor to complete the performance of the contract and any additional costs incurred by Canada shall, upon the request of Canada, be borne by the business.
  4. What evidence may be required from the business?
    1. Ownership and control
      1. Evidence of ownership and control of an Aboriginal business or joint venture may include incorporation documents, shareholders' or members' register; partnership agreements; joint venture agreements; business name registration; banking arrangements; governance documents; minutes of meetings of Board of Directors and Management Committees; or other legal documents.
      2. Ownership of an Aboriginal business refers to "beneficial ownership" i.e., who is the real owner of the business. Canada may consider a variety of factors to satisfy whether Aboriginal persons have true and effective control of an Aboriginal business. (See Appendix A Set-aside Program for Aboriginal Business for a list of the factors, which may be considered by Canada.)
    2. Employment and employees
      1. Where an Aboriginal business has six or more full-time employees at the date of submitting the certification and is required by Canada to substantiate that at least 33 percent of the full-time employees are Aboriginal, the business must, upon request by Canada, immediately provide a completed Owner/Employee Certification form for each full-time employee who is Aboriginal. See SACC Manual clauses A3001T, M3030T or S3036T, as appropriate.
      2. Evidence as to whether an employee is or is not full-time and evidence as to the number of full-time employees may include payroll records, written offers for employment, and remittance and payroll information maintained for Canada Revenue Agency purposes as well as information related to pension and other benefit plans.
      3. A full-time employee, for the purpose of this program, is one who is on the payroll, is entitled to all benefits that other full-time employees of the business receive, such as pension plan, vacation pay and sick leave allowance, and works at least 30 hours a week. It is the number of full-time employees on the payroll of the business at the date of bid submission that determines the ratio of Aboriginal to total employees of the business for the purpose of establishing eligibility under the Program.
      4. Owners who are Aboriginal and full-time employees who are Aboriginal must be ready to provide evidence in support of such status. The Owner/Employee Certification to be completed by each owner and full-time employee who is Aboriginal shall state that the person meets the eligibility criteria and that the information supplied is true and complete. This certification shall provide the person's consent to the verification of the information submitted.
  5. Subcontracts
    1. Evidence of the proportion of work done by subcontractors may include contracts between the contractor and subcontractors, invoices, and paid cheques.
    2. Evidence that a subcontractor is an Aboriginal business (where this is required to meet the minimum Aboriginal content of the contract) is the same as evidence that a prime contractor is an Aboriginal business.
  6. Who is an Aboriginal Person for Purposes of the Set-Aside Program for Aboriginal Business?
    1. An Aboriginal person is an Indian, Metis or Inuit who is ordinarily resident in Canada.
    2. Evidence of being an Aboriginal person will consist of such proof as:
      1. Indian registration in Canada;
      2. membership in an affiliate of the Metis National Council or the Congress of Aboriginal Peoples, or other recognized Aboriginal organizations in Canada;
      3. acceptance as an Aboriginal person by an established Aboriginal community in Canada;
      4. enrollment or entitlement to be enrolled pursuant to a comprehensive land claim agreement;
      5. membership or entitlement to membership in a group with an accepted comprehensive claim;
      6. evidence of being resident in Canada includes a provincial or territorial driver's license, a lease or other appropriate document.

Appendix A Set-aside Program for Aboriginal Business

(Excerpt from Treasury Board Contracting Policy Notice 1996-6, Annex A.)

Factors that may be considered in determining whether Aboriginal persons have at least 51% ownership and control of an Aboriginal business include:

  1. capital stock and equity accounts, i.e., preferred stock, convertible securities, classes of common stock, warrants, options;
  2. dividend policy and payments;
  3. existence of stock options to employees;
  4. different treatment of equity transactions for corporations, partnerships, joint ventures, community organizations, cooperatives, etc.;
  5. examination of charter documents, i.e., corporate charter, partnership agreement, financial structure;
  6. concentration of ownership or managerial control in partners, stockholders, officers trustees and directors-based definition of duties;
  7. principal occupations and employer of the officers and directors to determine who they represent, i.e., banker, vested ownerships;
  8. minutes of directors meetings and stockholders meetings for significant decisions that affect operations and direction;
  9. executive and employee compensation records for indication of level of efforts associated with position;
  10. nature of the business in comparison with the type of contract being negotiated;
  11. cash management practices, i.e., payment of dividends - preferred dividends in arrears;
  12. tax returns to identify ownership and business history;
  13. goodwill contribution/contributed asset valuation to examine and ascertain the fair market value of non-cash capital contributions;
  14. contracts with owners, officers and employees to be fair and reasonable;
  15. stockholder authority, i.e., appointments of officers, directors, auditors;
  16. trust agreements made between parties to influence ownership and control decisions;
  17. partnership - allocation and distribution of net income, i.e., provision for salaries, interest on capital and distribution share ratios;
  18. litigation proceedings over ownership;
  19. transfer pricing from non-Aboriginal joint venture;
  20. payment of management or administrative fees;
  21. guarantees made by the Aboriginal business;
  22. collateral agreements.

Annex 9.5: Procurement Strategy for Aboriginal Business Set-aside Checklist

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  1. Has the client indicated that the requirement has been set aside? (See 9.40.1 Decision to Set Aside a Procurement under the Procurement Strategy for Aboriginal Business)
    1. If no, and:
      1. The procurement is destined primarily for Aboriginal populations, and over $5,000, the contracting officer should draw the client's attention to the potential omission;
      2. Known qualified Aboriginal suppliers exist, the contracting officer should draw the client's attention to the potential for a voluntary Procurement Strategy for Aboriginal Business (PSAB) set-aside; or
      3. Neither (i) or (ii) above apply, or the client confirms that the procurement is not to be set-aside under PSAB, process the requirement according to standard procurement policies and procedures.
    2. If yes, see below:
  2. If the procurement is subject to Comprehensive Land Claims Agreements (CLCAs), determine the extent to which CLCAs and the PSAB set-aside conflict. In cases of conflict, CLCAs take precedence. (See 9.40.5 Procurement Strategy for Aboriginal Business and Comprehensive Land Claims Agreements.)
  3. Has the client indicated a requirement for subcontracting to Aboriginal business? (See 9.40.20 Subcontracting Plans.)
  4. Notify Aboriginal Procurement and Business Promotion Directorate, Aboriginal Affairs and Northern Development Canada (AANDC), of receipt of set aside requirement. (See 9.40.30(a).)
  5. Solicitation includes the document Requirements for the Set-aside Program for Aboriginal Business ( Annex 9.4: Requirements for the Set-aside Program for Aboriginal Business) and Standard Acquisition Clauses and ConditionsManual (SACC) clauses:
    1. A3002T, if applicable;
    2. A3000T, M9030T or S3035T, as appropriate; and
    3. A3001T, M3030T or S3036T, as appropriate. (See 9.40.10 Procurement Strategy for Aboriginal Business and Trade Agreements and 9.40.45(c).)
  6. Source requirement according to established policies and procedures, source list, Government Electronic Tendering Service, etc. (See 9.40.35(b).)
  7. Notice of Proposed Procurement (NPP)/Advanced Contract Award Notice (ACAN): Include a clear statement that the procurement has been set aside and that only Aboriginal businesses will be eligible. (See 9.40.35(e).)
  8. Has AANDC advised that the procurement is/is not subject to pre-award audit of certifications before solicitation closing? (See 9.40.50(f).)
  9. Have all bidders/offerors/suppliers provided signed certificates of eligibility with their bids/offers/arrangements? (See 9.40.45(d).)
  10. Evaluation of bids/offers/arrangements according to established criteria.
  11. Advice to AANDC of two "best-assessed" responsive bidders/offerors/suppliers (without financial information) if procurement subject to pre-award audit. (See 9.40.50(f).)
  12. Has AANDC advised regarding results of pre-award audit of certificates of eligibility? (See 9.40.50(f).)
  13. Award contract in accordance with established evaluation criteria and result of pre-award audit, if applicable. Any resulting contract issued on the basis of the supplier being Aboriginal must include SACC Manual clause A3000C.
  14. Advise AANDC of contract award within 15 working days. (See 9.40.30(c).)
  15. Contract management including advice to AANDC regarding changes in contractor's status as an Aboriginal business, or requests to AANDC to verify continued status (post-award audit). (See 9.40.50(g))
  16. The procurement reporting of the set aside under PSAB has been done accurately. (See 9.40.60 Procurement Reporting.)

Annex 9.6: Memorandum of Understanding - Canadian Commercial Corporation / Public Works and Government Services Canada

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This annex was removed from the Supply Manual as a result of a review of sections referencing the Canadian Commercial Corporation (CCC). For reference purposes, Annex 9.6 is available in the Supply Manual ArchiveThe information is only accessible to federal government department and agency employees., version 2016-2.

Annex A to Memorandum of Understanding 9.6.1: Responsibility Matrix

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This annex was removed from the Supply Manual as a result of a review of sections referencing the Canadian Commercial Corporation (CCC). For reference purposes, Annex A is available in the Supply Manual ArchiveThe information is only accessible to federal government department and agency employees., version 2016-2.

Annex B to Memorandum of Understanding 9.6.2: Canada-United States Defence Production Sharing Agreements

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This annex was removed from the Supply Manual as a result of a review of sections referencing the Canadian Commercial Corporation (CCC). For reference purposes, Annex B is available in the Supply Manual ArchiveThe information is only accessible to federal government department and agency employees., version 2016-2.

Annex C to Memorandum of Understanding 9.6.3: Canada-United States Defence Development Sharing Agreement

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This annex was removed from the Supply Manual as a result of a review of sections referencing the Canadian Commercial Corporation (CCC). For reference purposes, Annex C is available in the Supply Manual ArchiveThe information is only accessible to federal government department and agency employees., version 2016-2.