Bill 44 - Procurement Act

BILL 44

Procurement Act

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

Definitions

1 The following definitions apply in this Act.

“buying group” means a group purchasing organization that obtains best pricing from prospective suppliers based on volume for its members. (consortium d’achat)

“goods” means moveable property, including the costs of installing, operating, maintaining or manufacturing that moveable property, and includes raw materials, products, equipment and other physical objects of every kind and description whether in solid, liquid, gaseous or electronic form, unless they are procured as part of a general construction contract. (biens)

“jurisdiction” means (administration extraterritoriale)

(a) the Government of Canada or a department or agency of it,

(b) the government of any other province or territory of Canada or a department or agency of it, or

(c) the government of another country, the government of a state or territory of another country or a department or agency of them.

“Minister” means, (ministre)

(a) for the purposes of sections 3, 8, 17, 18 and 26, the member of the Executive Council designated by the Lieutenant-Governor in Council to administer this Act and does not include any person designated by the member to act on the member’s behalf for the purposes of this Act, and

(b) for the purposes of the other provisions of this Act, the member of the Executive Council designated by the Lieutenant-Governor in Council to administer this Act and includes any person designated by the member to act on the member’s behalf for the purposes of this Act.

“public body” includes a public body as defined in the Right to Information and Protection of Privacy Act, but does not include a Schedule A entity or a Schedule B entity. (organisme public)

“procurement” means the process that normally leads to an agreement to purchase, rent or lease goods and services. (démarches)

“Schedule A entity” means an entity that is prescribed by regulation as a Schedule A entity. (entité de l’annexe A)

“Schedule B entity” means an entity that is prescribed by regulation as a Schedule B entity. (entité de l’annexe B)

“services” means all services, including printing. (services)

PROCUREMENT BY THE MINISTER

Procurement on behalf of a Schedule A entity

2(1) Except as otherwise provided in this Act or in the regulations, a Schedule A entity shall obtain its goods and services through the Minister.

2(2) Except as otherwise provided in this Act or in the regulations, the Minister shall procure all the goods and services that are required by a Schedule A entity.

Temporary exemption

3(1) A Schedule A entity may apply to the Minister for a temporary exemption from compliance with section 2 and with some or all of the rules concerning the procurement methods prescribed by regulation.

3(2) In accordance with the regulations, the Minister may grant a temporary exemption from compliance with section 2 and with some or all of the rules concerning the procurement methods prescribed by regulation if the Minister is satisfied that, as a result of the temporary exemption, it is demonstrated that a public benefit may be achieved.

3(3) A temporary exemption shall be for a period determined by the Minister and may be renewed by the Minister at any time before the exemption expires, but the total exemption period shall not exceed 24 months.

3(4) The Minister may impose terms and conditions on a temporary exemption.

3(5) A temporary exemption shall be in writing and specify the following:

(a) the goods or services in respect of which the exemption is granted;

(b) the period of time for which the exemption is granted;

(d) the terms and conditions, if any, imposed by the Minister.

Procurement on behalf of a Schedule B entity

4 On the request of a Schedule B entity, the Minister may enter into an agreement with the Schedule B entity for the purposes of procuring goods and services on behalf of the Schedule B entity.

Procurement on behalf of a public body

5 On the request of a public body, the Minister may enter into an agreement with the public body for the purposes of procuring goods and services on behalf of the public body.

Procurement - jurisdictions

6 The Minister may enter into an agreement with a jurisdiction for the following purposes:

(a) the Minister to procure goods and services on a joint basis on behalf of the jurisdiction; or

(b) the jurisdiction to procure goods and services on a joint basis on behalf of the Minister.

Procurement on behalf of a private organization

7 On the request of a private organization, the Minister may enter into an agreement with the private organization for the purposes of procuring goods and services on behalf of the private organization if

(a) the private organization is located and operates in the Province,

(b) the private organization provides goods or services to the Province or to a municipality, a rural community or a local service district of the Province,

(c) the Minister is satisfied that the procurement is not in contravention of any Act of the Parliament of Canada or of the Legislature, and

(d) the Minister is satisfied that, as a result of the procurement,

(i) the Province or a municipality, a rural community or a local service district of the Province saves money, or

(ii) a public benefit is otherwise achieved.

Buying group

8 If the Minister is satisfied that a buying group’s procurement practices conform with the spirit and intent of the Act, the Minister may join the buying group.

Preferential treatment of prospective supplier

9 Except as may be provided in the regulations, the Minister shall not give preferential treatment to a prospective supplier.

PROCUREMENT BY SCHEDULE B ENTITIES

Procure on its own behalf

10 A Schedule B entity, by means of the head of the Schedule B entity or a person who is responsible for procurement on behalf of the Schedule B entity, shall procure all the goods and services that are required by the Schedule B entity and, in order to do so, may enter into agreements authorized by this Act.

Delegation

11(1) The head of the Schedule B entity or a person who is responsible for procurement on behalf of the Schedule B entity may delegate any power, authority, right, duty or responsibility conferred or imposed on him or her under this Act to any other person.

11(2) A delegation shall be in writing and specify the terms and conditions of the delegation.

11(3) A delegation may authorize the delegate to subdelegate the power, authority, right, duty or responsibility to a subordinate and to impose on the subdelegate the terms or conditions that the delegate considers appropriate, in addition to those set out in the delegation.

11(4) A delegate or subdelegate shall exercise a delegated power, authority or right or carry out a delegated duty or responsibility in accordance with the terms or conditions imposed in the delegation.

11(5) A subdelegate shall exercise a delegated power, authority or right or carry out a delegated duty or responsibility in accordance with the terms or conditions imposed on the subdelegate by the delegate.

Procurement on behalf of the Minister

12 On the request of the Minister, a Schedule B entity may enter into an agreement with the Minister for the purposes of procuring goods and services on behalf of the Minister.

Procurement on behalf of another Schedule B entity

13 On the request of another Schedule B entity, a Schedule B entity may enter into an agreement with the other Schedule B entity for the purposes of procuring goods and services on behalf of the other Schedule B entity.

Procurement on behalf of a public body

14 On the request of a public body, a Schedule B entity may enter into an agreement with the public body for the purposes of procuring goods and services on behalf of the public body.

Procurement - jurisdictions

15 A Schedule B entity may enter into an agreement with a jurisdiction for the following purposes:

(a) the Schedule B entity to procure goods and services on a joint basis on behalf of the jurisdiction; or

(b) the jurisdiction to procure goods and services on a joint basis on behalf of the Schedule B entity.

Procurement on behalf of a private organization

16 On the request of a private organization, a Schedule B entity may enter into an agreement with the private organization for the purposes of procuring goods and services on behalf of the private organization if

(a) the regulation authorizes the Schedule B entity to enter into the agreement,

(b) the private organization is located and operates in the Province,

(c) the private organization provides goods or services to the Province or to a municipality, a rural community or a local service district of the Province,

(d) the head of the Schedule B entity is satisfied that the procurement is not in contravention of any Act of the Parliament of Canada or of the Legislature, and

(e) the head of the Schedule B entity is satisfied that, as a result of the procurement,

(i) the Province or a municipality, a rural community or a local service district of the Province saves money, or

(ii) a public benefit is otherwise achieved.

Buying group

17 A Schedule B entity may join a buying group if the Minister grants the Schedule B entity permission to join the buying group under section 26.

Temporary exemption

18(1) A Schedule B entity may apply to the Minister for a temporary exemption from compliance with some or all of the rules concerning the procurement methods prescribed by regulation.

18(2) In accordance with the regulations, the Minister may grant a temporary exemption from compliance with some or all of the rules concerning the procurement methods prescribed by regulation if the Minister is satisfied that, as a result of the temporary exemption, it is demonstrated that a public benefit may be achieved.

18(3) A temporary exemption shall be for a period determined by the Minister and may be renewed by the Minister at any time before the exemption expires, but the total exemption period shall not exceed 24 months.

18(4) The Minister may impose terms and conditions on the temporary exemption.

18(5) A temporary exemption shall be in writing and specify the following:

(a) the goods or services in respect of which the exemption is granted;

(b) the period of time for which the exemption is granted;

(d) the terms and conditions, if any, imposed by the Minister.

Preferential treatment of prospective supplier

19 Except as may be provided in the regulations, a Schedule B entity shall not give preferential treatment to a prospective supplier.

GENERAL

Application of Act

20 This Act applies to any procurement done by or on behalf of the Minister, a Schedule A entity or a Schedule B entity.

Request for procurement

21(1) When a Schedule A entity, a Schedule B entity, a public body, a jurisdiction or a private organization requests the Minister to procure goods and services on its behalf, the request shall be made in a form and manner acceptable to the Minister.

21(2) When the Minister, another Schedule B entity, a public body, a jurisdiction or a private organization requests a Schedule B entity to procure goods and services on its behalf, the request shall be made in a form and manner acceptable to the Schedule B entity.

Joint procurement

22 Any procurement done by or on behalf of the Minister or a Schedule B entity may be done on a joint basis if the parties to the procurement agree to the procurement of goods and services on a joint basis and if it is appropriate in the circumstances.

Disqualification and reinstatement of prospective supplier

23 The disqualification of a prospective supplier from providing goods or services to the Schedule A entities or a Schedule B entity, as the case may be, and the reinstatement of a prospective supplier’s ability to provide goods or services shall be determined in accordance with the regime established by regulation.

Report re procurement

24(1) Three months after the end of each fiscal year, a Schedule A entity shall submit to the Minister, in the manner that the Minister requires, an annual report concerning its procurements, and the annual report shall contain the information that the Minister requires.

24(2) In addition to the annual report referred to in subsection (1), at any time, the Minister may require a Schedule A entity to submit a report to the Minister concerning its procurements in the time and manner that the Minister requires, and the report shall contain the information that the Minister requires.

24(3) At any time, the Minister may require a Schedule B entity to submit a report to the Minister concerning the procurements done by or on behalf of the Schedule B entity in the time and manner that the Minister requires, and the report shall contain the information that the Minister requires.

Report re complaints

25(1) At any time, the Minister may require a Schedule A entity to submit a report to the Minister concerning complaints the Schedule A entity received from prospective suppliers in relation to procurements done by the Schedule A entity.

25(2) At any time, the Minister may require a Schedule B entity to submit a report to the Minister concerning complaints the Schedule B entity received from prospective suppliers in relation to procurements done by the Schedule B entity.

25(3) The report required under subsection (1) or (2) shall be submitted in the time and manner that the Minister requires and shall contain the information that the Minister requires.

Permission to join buying group

26(1) In the form and manner that the Minister requires, a Schedule B entity may apply to the Minister for permission to join a buying group.

26(2) If the Minister is satisfied that the buying group’s procurement practices conform with the spirit and intent of this Act, the Minister shall give the Schedule B entity permission to join the buying group.

26(3) The permission of the Minister shall be in writing.

26(4) The Minister may revoke a Schedule B entity’s permission to join a buying group if the Minister is satisfied that the buying group’s procurement practices fail to conform with the spirit and intent of this Act.

26(5) A Schedule B entity’s permission to join a buying group expires on the date of expiry indicated in the permission, unless sooner revoked.

Immunity

27 No action or other proceeding for damages or otherwise lies or shall be instituted against any of the following persons or entities in relation to anything done or purported to be done in good faith, or in relation to anything omitted in good faith, under this Act or the regulations by the person or entity:

(a) the Minister;

(b) a Schedule B entity; and

(c) any person acting under or who has acted under the authority of this Act or the instructions of a person or entity referred to in this section.

Administration

28 The Minister is responsible for the administration of this Act and may designate one or more persons to act on the Minister’s behalf.

Regulations

29 The Lieutenant-Governor in Council may make regulations

(a) prescribing entities for the purposes of the definition “Schedule A entity”;

(b) prescribing entities for the purposes of the definition “Schedule B entity”;

(d) specifying the circumstances in which and the thresholds under which a Schedule A entity is not required to obtain goods and services through the Minister;

(e) specifying the circumstances in which the Minister may grant a temporary exemption under section 3 or 18;

(f) respecting the terms and conditions on which the Minister may procure goods or services on behalf of a Schedule B entity, a public body, a jurisdiction or a private organization;

(g) respecting the terms and conditions on which a Schedule B entity may procure goods or services on behalf of the Minister, another Schedule B entity, a public body, a jurisdiction or a private organization;

(h) prescribing the procurement methods, including alternative procurement methods, used by the Minister, a Schedule A entity or a Schedule B entity;

(i) prescribing the rules concerning the procurement methods, including specifying when and how they are to be used and the applicable thresholds;

(j) exempting a Schedule B entity from the application of the rules concerning the procurement methods, and specifying the circumstances in which and the goods and services for which a Schedule B entity is exempt from the application of the rules;

(k) specifying the reasons for refusing bids;

(l) prescribing the procurement methods used by the Minister or a Schedule B entity in urgent and emergency situations, including specifying when and how they are to be used;

(m) authorizing a Schedule B entity to enter into an agreement with a private organization for the purposes of procuring goods and services on behalf of the private organization;

(n) respecting the circumstances under which the Minister or a Schedule B entity may give preferential treatment to a prospective supplier;

(o) prescribing the offences under an Act of Parliament or any other Act of the Legislature or the regulations under those Acts for the purposes of the regime in which a conviction for any of the prescribed offences results in the disqualification of a prospective supplier from providing goods or services to the Schedule A entities or a Schedule B entity, as the case may be, and prescribing the period of time the prospective supplier is disqualified, which period of time may vary for different prescribed offences;

(p) prescribing the reasons, period of time and scope of a disqualification by the Minister of a prospective supplier to provide goods or services to the Schedule A entities and, if none are prescribed, authorizing the Minister to determine, within prescribed parameters, the period of time and scope of a disqualification;

(q) prescribing the process by which and the reasons for which the Minister may disqualify a prospective supplier from providing goods or services to the Schedule A entities, including past performance, and the process by which and the reasons for which the Minister may reinstate a prospective supplier and prescribing the review process available to a prospective supplier before he or she is disqualified;

(r) prescribing the reasons, period of time and scope of a disqualification by a Schedule B entity of a prospective supplier to provide goods or services to the Schedule B entity and, if none are prescribed, authorizing the Schedule B entity to determine, within prescribed parameters, the period of time and scope of a disqualification;

(s) prescribing the process by which and the reasons for which a Schedule B entity may disqualify a prospective supplier from providing goods or services to the Schedule B entity, including past performance, and the process by which and the reasons for which a Schedule B entity may reinstate a prospective supplier and prescribing the review process available to a prospective supplier before he or she is disqualified;

(t) prescribing the measures the Minister or a Schedule B entity may take when a supplier becomes disqualified from providing goods or services to the Schedule A entities or a Schedule B entity, as the case may be, during the performance of an agreement to purchase, rent or lease goods and services;

(u) prescribing electronic tendering systems;

(v) respecting the public advertisement of solicitations on electronic tendering systems;

(w) exempting goods and services from the application of this Act, including the thresholds, if any, that apply to the exemptions;

(x) defining any word or expression used in but not defined in this Act;

(y) respecting any other matter or thing that is considered necessary for carrying out the purposes of this Act.

TRANSITIONAL PROVISIONS, CONSEQUENTIAL AMENDMENTS, REPEAL AND COMMENCEMENT

Transitional provision

30 Any procurement that was commenced before the commencement of this section shall comply with the provisions of the Public Purchasing Act, despite the repeal of that Act.

Consequential amendments

Conflict of Interest Act

31 Subparagraph 6(d)(i) of the Conflict of Interest Act, chapter 129 of the Revised Statutes, 2011, is amended by striking out “Public Purchasing Act” and substituting “Procurement Act”.

Education Act

32 Section 50.1 of the Education Act, chapter E-1.12 of the Acts of New Brunswick, 1997, is amended by striking out “Public Purchasing Act” and substituting “Procurement Act”.

Energy Efficiency and Conservation Agency of New Brunswick Act

33 Subsection 18(1) of the Energy Efficiency and Conservation Agency of New Brunswick Act, chapter E-9.15 of the Acts of New Brunswick, 2005, is amended by striking out “Public Purchasing Act” and substituting “Procurement Act”.

New Brunswick Highway Corporation Act

34(1) The heading “Application of the Crown Construction Contracts Act and the Public Purchasing Act” preceding section 13 of the New Brunswick Highway Corporation Act, chapter N-5.11 of the Acts of New Brunswick, 1995, is amended by striking out “Public Purchasing Act” and substituting “Procurement Act”.

34(2) Subsection 13(1) of the Act is amended by striking out “Public Purchasing Act” and substituting “Procurement Act”.

New Brunswick Liquor Corporation Act

35 Subsection 12(1) of the New Brunswick Liquor Corporation Act, chapter N-6.1 of the Acts of New Brunswick, 1974, is amended by striking out “Public Purchasing Act” and substituting “Procurement Act”.

Service New Brunswick Act

36 Subsection 14(1) of the Service New Brunswick Act, chapter S-6.2 of the Acts of New Brunswick, 1989, is amended by striking out “Public Purchasing Act” and substituting “Procurement Act”.

Repeal

Repeal of Public Purchasing Act and regulation

37(1) The Public Purchasing Act, chapter 212 of the Revised Statutes of New Brunswick, 2011, is repealed.

37(2) New Brunswick Regulation 94-157 under the Public Purchasing Act is repealed.

Commencement

38 This Act or any provision of it comes into force on a day or days to be fixed by proclamation.