- 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.
- Even though a procurement is set aside under PSAB, all applicable procurement policies and procedures must be followed.
- The decision to set aside a procurement under PSAB is the responsibility of the client department.
- There are two types of PSAB set-asides:
- Mandatory Set-Asides:
- 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.
- 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.
- 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.
- Under ARCHIVED - TBS Contracting Policy Notice 1996-2,
"Aboriginal Population" means
- an area, or community in which Aboriginal people make up at least 80 percent of the population;
- a group of people for whom the procurement is aimed in which Aboriginal people make up at least 80 percent of the group.
- 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.
- Mandatory Set-Asides:
- 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.)
- 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.
- 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.
- 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.
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.
- All international trade agreements provide for set-asides for Aboriginal businesses:
- 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;
- Article 1.(d) of Annex 1001.2b of the NAFTA: provides only for set-asides for small and minority business; and
- 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.
- 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).
- 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.
- If the value of the procurement is equal to or greater than $25,000, PSAB and the Canadian Content Policy will be applied simultaneously.
- 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.
- 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.)
- 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.
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).
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.
- 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).
- 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
The notification must include the following information:
- estimated dollar value;
- description of goods/services/construction;
- solicitation number;
- solicitation closing date; and
- buyer (name, and phone/fax numbers).
- 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.
- 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.
- 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".
- 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.
- 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.
- 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: email@example.com.
- 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);
"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)
- 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.
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.
- 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.
- 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".
- 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.
- 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.
- 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).)
- Any resulting contract awarded on the basis of the supplier being Aboriginal must include SACC Manual clause A3000C.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
Bid challenges should be dealt with according to established internal supplier complaint response procedures for procurements not subject to trade agreements.
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.