BILL 67
An Act to Amend the Procurement Act
Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:
1 Section 1 of the Procurement Act, chapter 20 of the Acts of New Brunswick, 2012, is amended
aby repealing the definition “procurement” and substituting the following:
“procurement” means the process that normally leads to an agreement to purchase, rent or lease goods, services or construction services. (démarches)
bby repealing the definition “services” and substituting the following:
“services” means any service, including printing, but does not include construction services. (services)
cin the definition “goods” by striking out “general construction contract” and substituting “contract for construction services”;
din the definition “public body” by striking out “a Schedule A entity or a Schedule B entity” and substituting “a Schedule A entity, a Schedule B entity, a Schedule 1 entity or a Schedule 2 entity”;
eby adding the following definitions in alphabetical order:
“construction services” means services relating to the construction, repair or alteration of land or structures. (services de construction)
“Schedule 1 entity” means an entity that is prescribed by regulation as a Schedule 1 entity. (entité de l’annexe 1)
“Schedule 2 entity” means an entity that is prescribed by regulation as a Schedule 2 entity. (entité de l’annexe 2)
2 The Act is amended by adding after section 2 the following:
Procurement on behalf of a Schedule 1 entity
2.1( 1) Except as otherwise provided in this Act or in the regulations, a Schedule 1 entity shall obtain its construction services through the Minister.
2.1( 2) Except as otherwise provided in this Act or in the regulations, the Minister shall procure all the construction services that are required by a Schedule 1 entity.
3 Section 3 of the Act is amended
ain subsection (1) of the French version by striking out “dispensée de l’article 2 et de suivre certaines ou toutes les règles relatives aux modes d’approvisionnement prescrites par les règlements” and substituting “dispensée de l’application de l’article 2 et de l’obligation de suivre tout ou partie des règles relatives aux modes d’approvisionnement prescrites par règlement”;
bby adding after subsection (1) the following:
3( 1.1) A Schedule 1 entity may apply to the Minister for a temporary exemption from compliance with section 2.1 and with some or all of the rules concerning the procurement methods prescribed by regulation.
cin subsection (2) by striking out “section 2” and substituting “section 2 or 2.1”;
dby repealing paragraph (5)(a) and substituting the following:
athe goods, services or construction services in respect of which the exemption is granted;
4 The Act is amended by adding after section 4 the following:
Procurement on behalf of a Schedule 2 entity
4.1 On the request of a Schedule 2 entity, the Minister may enter into an agreement with the Schedule 2 entity for the purposes of procuring construction services on behalf of the Schedule 2 entity.
5 Section 5 of the Act is amended by striking out “goods and services” and substituting “goods, services or construction services”.
6 The heading “Démarches pour le compte d’une administration extraterritoriale” preceding section 6 of the French version of the Act is repealed and the following is substituted:
Démarches – administration extraterritoriale
7 Section 6 of the Act is amended
ain paragraph (a) by striking out “goods and services” and substituting “goods, services or construction services”;
bin paragraph (b) by striking out “goods and services” and substituting “goods, services or construction services”.
8 The heading “Preferential treatment of prospective supplier” preceding section 9 of the Act is amended by striking out “of prospective supplier”.
9 Section 9 of the Act is amended by striking out “supplier” and substituting “supplier or a prospective contractor”.
10 The heading “PROCUREMENT BY SCHEDULE B ENTITIES” preceding section 10 of the Act is amended by striking out “SCHEDULE B ENTITIES” and substituting “SCHEDULE B ENTITIES AND SCHEDULE 2 ENTITIES”.
11 The heading “Procure on its own behalf” preceding section 10 of the Act is repealed and the following is substituted:
Schedule B entities and Schedule 2 entities procure on their own behalf
12 Section 10 of the Act is repealed and the following is substituted:
10( 1) 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.
10( 2) A Schedule 2 entity, by means of the head of the Schedule 2 entity or a person who is responsible for procurement on behalf of the Schedule 2 entity, shall procure all the construction services that are required by the Schedule 2 entity and, in order to do so, may enter into agreements authorized by this Act.
13 Subsection 11(1) of the Act is repealed and the following is substituted:
11( 1) The head of a Schedule B entity or a Schedule 2 entity or a person who is responsible for procurement on behalf of the entity may delegate any power, authority, right, duty or responsibility conferred or imposed on them under this Act to any other person.
14 Section 12 of the Act is repealed and the following is substituted:
12 On the request of the Minister,
aa Schedule B entity may enter into an agreement with the Minister for the purposes of procuring goods and services on behalf of the Minister, and
ba Schedule 2 entity may enter into an agreement with the Minister for the purposes of procuring construction services on behalf of the Minister.
15 The Act is amended by adding after section 13 the following:
Procurement on behalf of another Schedule 2 entity
13.1 On the request of another Schedule 2 entity, a Schedule 2 entity may enter into an agreement with the other Schedule 2 entity for the purposes of procuring construction services on behalf of the other Schedule 2 entity.
16 Section 14 of the Act is repealed and the following is substituted:
14 On the request of a public body,
aa 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, and
ba Schedule 2 entity may enter into an agreement with the public body for the purposes of procuring construction services on behalf of the public body.
17 The heading “Démarches pour le compte d’une administration extraterritoriale” preceding section 15 of the French version of the Act is repealed and the following is substituted:
Démarches – administration extraterritoriale
18 Section 15 of the Act is repealed and the following is substituted:
15( 1) A Schedule B entity may enter into an agreement with a jurisdiction for the following purposes:
athe Schedule B entity to procure goods and services on a joint basis on behalf of the jurisdiction; or
bthe jurisdiction to procure goods and services on a joint basis on behalf of the Schedule B entity.
15( 2) A Schedule 2 entity may enter into an agreement with a jurisdiction for the following purposes:
athe Schedule 2 entity to procure construction services on a joint basis on behalf of the jurisdiction; or
bthe jurisdiction to procure construction services on a joint basis on behalf of the Schedule 2 entity.
19 Section 18 of the Act is amended
aby repealing subsection (1) and substituting the following:
18( 1) A Schedule B entity or a Schedule 2 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.
bin subsection (2) of the French version by striking out “de certaines ou de toutes les règles relatives aux modes d’approvisionnement prescrites par les règlements” and substituting “de l’obligation de suivre tout ou partie des règles relatives aux modes d’approvisionnement prescrites par règlement”;
cin paragraph (5)(a) by striking out “goods or services” and substituting “goods, services or construction services”.
20 The heading “Preferential treatment of prospective supplier” preceding section 19 of the Act is amended by striking out “of prospective supplier”.
21 Section 19 of the Act is repealed and the following is substituted:
19 Except as may be provided in the regulations,
aa Schedule B entity shall not give preferential treatment to a prospective supplier, and
ba Schedule 2 entity shall not give preferential treatment to a prospective contractor.
22 Section 20 of the Act is amended by striking out “a Schedule A entity or a Schedule B entity” and substituting “a Schedule A entity, a Schedule B entity, a Schedule 1 entity or a Schedule 2 entity”.
23 The heading “Demande au ministre de faire des démarches” preceding section 21 of the French version of the Act is repealed and the following is substituted:
Demande de démarches
24 Section 21 of the Act is amended by adding after subsection (2) the following:
21( 3) When a Schedule 1 entity, a Schedule 2 entity, a public body or a jurisdiction requests that the Minister procure construction services on its behalf, the request shall be made in a form and manner acceptable to the Minister.
21( 4) When the Minister, another Schedule 2 entity, a public body or a jurisdiction requests that a Schedule 2 entity procure construction services on its behalf, the request shall be made in a form and manner acceptable to the Schedule 2 entity.
25 Section 22 of the Act is repealed and the following is substituted:
22 Any procurement done by or on behalf of the Minister, a Schedule B entity or a Schedule 2 entity may be done on a joint basis if the parties to the procurement agree to the procurement of goods, services or construction services on a joint basis and if it is appropriate in the circumstances.
26 The Act is amended by adding after section 23 the following:
Disqualification and reinstatement of prospective contractor
23.1 The disqualification of a prospective contractor from providing construction services to the Schedule 1 entities or a Schedule 2 entity, as the case may be, and the reinstatement of a prospective contractor’s ability to provide construction services shall be determined in accordance with the regime established by regulation.
27 Section 24 of the Act is amended
ain subsection (1) by striking out “a Schedule A entity shall submit” and substituting “a Schedule A entity or a Schedule 1 entity, as the case may be, shall submit”;
bin subsection (2) by striking out “a Schedule A entity” and substituting “a Schedule A entity or a Schedule 1 entity”;
cby repealing subsection (3) and substituting the following:
24( 3) At any time, the Minister may require a Schedule B entity or a Schedule 2 entity to submit a report to the Minister concerning the procurements done by or on behalf of the entity in the time and manner that the Minister requires, and the report shall contain the information that the Minister requires.
28 Section 25 of the Act is amended
ain subsection (1) of the French version by striking out “quant à ses” and “par elle” and substituting “quant aux” and “par celle-ci”, respectively;
bin subsection (2) of the French version by striking out “quant à ses” and “par elle” and substituting “quant aux” and “par celle-ci”, respectively;
cby adding after subsection (2) the following:
25( 2.1) At any time, the Minister may require a Schedule 1 entity to submit a report to the Minister concerning complaints the Schedule 1 entity received from prospective contractors in relation to procurements done by the Schedule 1 entity.
25( 2.2) At any time, the Minister may require a Schedule 2 entity to submit a report to the Minister concerning complaints the Schedule 2 entity received from prospective contractors in relation to procurements done by the Schedule 2 entity.
din subsection (3) by striking out “subsection (1) or (2)” and substituting “subsection (1), (2), (2.1) or (2.2)”.
29 Section 27 of the Act is amended
ain paragraph (b) of the English version by striking out “and” at the end of the paragraph;
bby adding after paragraph (b) the following:
b.1a Schedule 2 entity; and
30 Section 29 of the Act is amended
aby adding after paragraph (b) the following:
b.1prescribing entities for the purposes of the definition “Schedule 1 entity”;
b.2prescribing entities for the purposes of the definition “Schedule 2 entity”;
bby repealing paragraph c) of the French version and substituting the following:
cprescrire quels sont les biens et les services qu’une entité de l’annexe A n’est pas tenue d’obtenir par l’entremise du ministre;
cby adding after paragraph (c) the following:
c.1specifying the construction services that a Schedule 1 entity is not required to obtain through the Minister;
din paragraph d) of the French version by striking out “de passer par le ministre pour obtenir des biens et des services” and substituting “d’obtenir des biens et des services par l’entremise du ministre”;
eby adding after paragraph (d) the following:
d.1specifying the circumstances in which and the thresholds under which a Schedule 1 entity is not required to obtain construction services through the Minister;
fin paragraph f) of the French version by striking out “les modalités et les conditions selon lesquelles” and substituting “les modalités selon lesquelles et les conditions auxquelles”;
gby adding after paragraph (f) the following:
f.1respecting the terms and conditions on which the Minister may procure construction services on behalf of a Schedule 2 entity, a public body or a jurisdiction;
hin paragraph g) of the French version by striking out “les modalités et les conditions selon lesquelles” and substituting “les modalités selon lesquelles et les conditions auxquelles”;
iby adding after paragraph (g) the following:
g.1respecting the terms and conditions on which a Schedule 2 entity may procure construction services on behalf of the Minister, another Schedule 2 entity, a public body or a jurisdiction;
jin paragraph (h) by striking out “a Schedule A entity or a Schedule B entity” and substituting “a Schedule A entity, a Schedule B entity, a Schedule 1 entity or a Schedule 2 entity”;
kby repealing paragraph j) of the French version and substituting the following:
jdispenser une entité de l’annexe B de l’application des règles relatives aux modes d’approvisionnement et préciser les circonstances dans lesquelles et les biens et les services pour lesquels celle-ci en est dispensée;
lby adding after paragraph (j) the following:
j.1exempting a Schedule 2 entity from the application of the rules concerning the procurement methods, and specifying the circumstances in which and the construction services for which a Schedule 2 entity is exempt from the application of the rules;
min paragraph (l) by striking out “the Minister or a Schedule B entity” and substituting “the Minister, a Schedule B entity or a Schedule 2 entity”;
nby adding after paragraph (n) the following:
n.1prescribing the circumstances under which the Minister or a Schedule 2 entity may give preferential treatment to a prospective contractor and the manner in which and the method by which preferential treatment may be given to a prospective contractor, including the following:
( i) prescribing classes of prospective contractors;
( ii) extending different levels of preferential treatment to prospective contractors based on the class to which they belong; and
( iii) establishing an order of priority for receiving preferential treatment based on the classes of prospective contractors;
oby adding after paragraph (o) the following:
o.1prescribing 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 contractor from providing construction services to the Schedule 1 entities or a Schedule 2 entity, as the case may be, and prescribing the period of time the prospective contractor is disqualified, which period of time may vary for different prescribed offences;
pin paragraph (p) by striking out “the period of time and scope” and substituting “the period of time, commencement date and scope”;
qby adding after paragraph (p) the following:
p.1prescribing the reasons, period of time and scope of a disqualification by the Minister of a prospective contractor from providing construction services to the Schedule 1 entities and, if none are prescribed, authorizing the Minister to determine, within prescribed parameters, the period of time, commencement date and scope of a disqualification;
rin paragraph q) by striking out “he or she is” and substituting “they are”;
sby adding after paragraph (q) the following:
q.1prescribing the process by which and the reasons for which the Minister may disqualify a prospective contractor from providing construction services to the Schedule 1 entities, including past performance, and the process by which and the reasons for which the Minister may reinstate a prospective contractor and prescribing the review process available to a prospective contractor before they are disqualified;
tin paragraph (r) by striking out “the period of time and scope” and substituting “the period of time, commencement date and scope”;
uby adding after paragraph (r) the following:
r.1prescribing the reasons, period of time and scope of a disqualification by a Schedule 2 entity of a prospective contractor from providing construction services to the Schedule 2 entity and, if none are prescribed, authorizing the Schedule 2 entity to determine, within prescribed parameters, the period of time, commencement date and scope of a disqualification;
vin paragraph s) of the French version by striking out “l’entité notamment, pour mauvais rendement et la marche à suivre pour sa réhabilitation et indiquer les raisons pour lesquelles il peut être réhabilité par l’entité et prescrire le processus de révision dont peut se prévaloir un aspirant-fournisseur avant qu’il ne soit déclaré inhabile” and substituting “l’entité, notamment pour mauvais rendement, et la marche à suivre pour sa réhabilitation, et indiquer les raisons pour lesquelles il peut être déclaré inhabile ou réhabilité par l’entité ainsi que prescrire le processus de révision dont il peut se prévaloir avant d’être déclaré inhabile”;
wby adding after paragraph (s) the following:
s.1prescribing the process by which and the reasons for which a Schedule 2 entity may disqualify a prospective contractor from providing construction services to the Schedule 2 entity, including past performance, and the process by which and the reasons for which a Schedule 2 entity may reinstate a prospective contractor and prescribing the review process available to a prospective contractor before they are disqualified;
xby adding after paragraph (t) the following:
t.1prescribing the measures the Minister or a Schedule 2 entity may take when a contractor becomes disqualified from providing construction services to the Schedule 1 entities or a Schedule 2 entity, as the case may be, during the performance of a contract for construction services;
t.2authorizing the Minister of Transportation and Infrastructure to establish the form and content of a short form contract for construction services or a standard contract for construction services and to approve the form and content of an alternate form of contract for construction services;
t.3prescribing the circumstances in which a short form contract for construction services or a standard contract for construction services is to be used and authorizing the Minister of Transportation and Infrastructure to determine the circumstances in which an alternate form of contract for construction services is to be used;
t.4governing the contracts for construction services, including authorizing the collection of personal information either directly from an individual to whom the information relates or indirectly from another person;
t.5prescribing the types of bonds or security to be provided by a prospective contractor and specifying the circumstances in which each type is to be provided;
t.6authorizing the Minister of Transportation and Infrastructure to establish the form and content of an irrevocable standby letter of credit for the purposes of procurement of construction services;
t.7governing the substitution of a subcontractor or supplier during the procurement of construction services;
t.8in the event that a Schedule 1 entity or a Schedule 2 entity is a party to a contract for construction services, authorizing the head of the entity to delegate the authority to negotiate and settle any request by a contractor for an extension of time for the completion of work to be performed under the contract or any claim made by a contractor for additional money in respect of work performed under the contract;
yin paragraph (w) by striking out “goods and services” and substituting “goods, services and construction services”.
TRANSITIONAL AND SAVING PROVISIONS
Continued application of the provisions of the Crown Construction Contracts Act and Regulation 82-109 under that Act
31( 1) Despite the repeal of the Crown Construction Contracts Act, chapter 105 of the Revised Statutes, 2014, and of New Brunswick Regulation 82-109 under that Act, and despite any inconsistency with the provisions of this Act and any regulation under this Act, the provisions of the Crown Construction Contracts Act and New Brunswick Regulation 82-109 under that Act, as they existed immediately before the commencement of this section, continue to apply to
aall contracts entered into before the commencement of this section, and
ball tenders opened before the commencement of this section.
31( 2) For greater certainty, despite the repeal of the Crown Construction Contracts Act, chapter 105 of the Revised Statutes, 2014, and of New Brunswick Regulation 82-109 under that Act, and despite any inconsistency with the provisions of this Act and any regulation under this Act, an action may be commenced, dealt with and concluded under the provisions of the Crown Construction Contracts Act and New Brunswick Regulation 82-109 under that Act, as they existed immediately before the commencement of this section, with respect to
aall contracts entered into before the commencement of this section, and
ball tenders opened before the commencement of this section.
CONSEQUENTIAL AMENDMENTS,
REPEALS AND COMMENCEMENT
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 “, the Crown Construction Contracts Act”.
Electricity Act
33 Subsection 37(12) of the Electricity Act, chapter 7 of the Acts of New Brunswick, 2013, is amended in the portion preceding paragraph (a) by striking out “the Crown Construction Contracts Act, the Public Purchasing Act and the Procurement Act and the regulations under any of those Acts, those Acts and regulations” and substituting “the Procurement Act and the regulations under that Act, that Act and those regulations”.
New Brunswick Highway Corporation Act
34 The New Brunswick Highway Corporation Act, chapter N-5.11 of the Acts of New Brunswick, 1995, is amended
ain the heading “Application of the Crown Construction Contracts Act and the Procurement Act” preceding section 13 by striking out “the Crown Construction Contracts Act and”;
bby repealing section 13 and substituting the following:
13( 1) The Procurement Act applies to the Corporation.
13( 2) Despite subsection (1), and despite any provision of the Procurement Act or the regulations under it,
athe Procurement Act and the regulations under it do not apply in respect of an agreement made between the Corporation and a project company, and
bif the Corporation enters into an agreement or forms a joint venture with another person for the purposes of this Act, the Procurement Act and the regulations under it do not apply in respect of further agreements or the purchase of supplies or services made by or other transactions carried out by that other person.
New Brunswick Liquor Corporation Act
35 Section 14 of the New Brunswick Liquor Corporation Act, chapter 105 of the Revised Statutes, 2016, is amended
ain subsection (1) by striking out “Crown Construction Contracts Act” and substituting “Procurement Act”;
bin subsection (3) by striking out “Crown Construction Contracts Act” wherever it appears and substituting “Procurement Act”.
Repeal of the Crown Construction Contracts Act
36 The Crown Construction Contracts Act, chapter 105 of the Revised Statutes, 2014, is repealed.
Repeal of regulations under the Crown Construction Contracts Act
37( 1) New Brunswick Regulation 82-109 under the Crown Construction Contracts Act is repealed.
37( 2) New Brunswick Regulation 82-113 under the Crown Construction Contracts 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.