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Contract Regulations and Contracting Directive Please go to the Table of Contents below and click on a specific topic for more information. This is an office consolidation of the Contract Regulations (O.I.C.1998/179 ) and Contracting Directive published by the Department of Highways and Public Works. Changes made to the previous Regulations and Directives are reflected in this document and briefly described below. This text is published solely as a convenience and is not an authoritative text of which judicial notice must be taken. The official text of the Contract Regulations may be examined at most public libraries and copies of the official text may be obtained through the Legislative Documents Subscriptions service. The material on this site may be reproduced, in whole or in part and by any means, without further permission from the Department of Highways and Public Works. Effective October 15, 1998 Management Board Revisions
CONTRACT REGULATIONS AND DIRECTIVE CHANGES TO INCORPORATE YUKON HIRE POLICY In April 1998 the Yukon government incorporated a number of recommendations made in the Yukon Hire Commission Report into a local hire policy. To implement the Yukon Hire policy, we harmonized the existing Contract Regulations and Contracting Directive with the new government direction. The amended Regulations and Directive provide an environment that ensures Yukon government spending benefits Yukon businesses and workers first. The changes to the Contracting Directive, briefly described below, formally incorporate nine of the Yukon Hire Recommendations (YHR) into the government’s contracting policy.
TABLE OF CONTENTSContract RegulationsPART I - INTERPRETATION PART II - GENERAL PART III - PRINCIPLES PART IV - FINANCIAL PROTECTION FOR SUBCONTRACTORS Contracting DirectivePART I - INTERPRETATION PART II - GENERAL PART III - COMPETITIVE BIDDING REQUIREMENTS PART IV - THE COMPETITIVE BIDDING PROCESS PART V - ADMINISTRATION OF THE CONTRACT PART VI - BID CHALLENGE PROCESS 1. The following definitions apply in these regulations. Bid - An offer, submitted in response to a request for bids, to supply goods or services or to purchase assets at a specific price or price formula, under stated terms and conditions. Bidder - A person, partnership or corporation who submits a bid. Contract - An agreement between a contracting authority and a contractor to provide a good, perform a service, construct a public work, or to lease real property, for consideration. Contracting authority - Any government body or government employee having authority pursuant to the Financial Administration Act to enter into a contract on behalf of the Government of the Yukon. Contractor - Any person, partnership or corporation which supplies goods or services or constructs a public work under a contract with the government. Contribution agreement - An agreement between a donor and a recipient of a contribution which describes the obligations of each party and the conditions of payment. Department - A department as defined in the Financial Administration Act. Employment contract - A contract of service which establishes an employer - employee relationship. Evaluation criteria - Criteria against which proposals are evaluated for purposes of determining: a) which proposals qualify for consideration; and b) how to rank valid proposals. The selection of the successful proposal is based on factors which may include the effectiveness of the proposed solution, and the experience, qualifications, and financial capabilities of the proponents, rather than on price alone. Goods contract - A contract for the purchase of articles, commodities, equipment, goods, materials or supplies, which may include installation. Open source list - A list of persons, partnerships and/or companies which have indicated their willingness to respond to requests for bids or proposals. Price-driven contract - A contract entered into as the result of a bid. Proponent - A person, partnership or corporation who submits a proposal. Proposal - An offer, either unsolicited or in response to a request for proposals, to propose a solution to a problem, need or objective, under stated terms and conditions, or to establish a qualified source list. Public work - A project involving the expenditure of public funds for building construction, heavy construction or road, sewer or water main construction as specifically defined in the request for bids or proposals for the project. Request for bids - A document defining the minimum standards to be met by bidders and the requirements of the contract so as to permit the evaluation of bids on the basis of price. Request for proposals - A document inviting suppliers to propose a solution to a problem, need or objective. Standing offer agreement - A method of supply used to provide direct access to sources of supply for goods and/or services, on an as-required basis, for specific periods of time, at prearranged prices and delivery conditions. Subcontractor - A corporation, partnership or individual who has been awarded a contract by a contractor of the government and under that contract supplies goods or services or performs work on a public work for which the contractor was engaged. Value-driven contract - A contract entered into as the result of a proposal. Yukon business - has the same meaning as in the Contracting Directive made pursuant to section 23 of the Financial Administration Act. Yukon resident - has the same meaning as in the said Contracting Directive. 2. The objectives of government contracting policy are to ensure that government contracting activities are carried out in a fair, fiscally responsible, accountable, open and competitive manner, and that they benefit Yukon residents and Yukon businesses where practicable. 3. These regulations apply to all contracts except: (a) employment contracts; (b) contracts relating to projects funded by the Government of the Yukon and carried out by another party under a contribution agreement for its own use; and (c) contracts for the practice of law as defined in the Legal Professions Act. 4. (1) Subject to the terms of any agreement between the Government of the Yukon and the Government of Canada, these regulations apply to projects carried out by the Government of the Yukon on behalf of the Government of Canada. (2) These regulations apply to all departments which have deputy heads as defined in the Public Service Act. Access to policy documents and related materials 5. Reasonable access must be provided to government policy documents and related contracting materials upon request. Materials available for distribution are to be supplied in a non-discriminatory manner, and any fees charged for such distribution are to be reasonable. Opportunity to compete for government contracts 6. Prospective bidders and proponents must be registered on open source lists on request. 7. (1) Subject to subsection (2), a prospective bidder or proponent must be given a copy of requests for bids or proposals upon request. (2) Where bids or proposals are invited solely from Yukon businesses, copies of the request for bids or proposals may only be given to other Yukon businesses. 8. Contracting authorities must encourage competition for contracts, but must respect the following: (a) there must be specific criteria for sole sourcing contracts, and specific sourcing thresholds to determine the level of competition for price-driven contracts, value-driven contracts and goods contracts; (b) contracting activities must be carried out in full compliance with all applicable Yukon land claims agreements; (c) contracting authorities must make best efforts to contract for goods and services in the community in which they are used, to the extent that doing so reasonably conforms to the objectives of these regulations, and to the extent that their needs can be met by community-based businesses. 9. Contracting authorities must not use standards, specifications, evaluation criteria, time limits to respond to requests for bids or proposals, standing offer agreements, contribution agreements, source lists, or other means to unfairly limit competition. Open evaluation of bids and proposals 10. Evaluation criteria and standards used to evaluate bids and proposals must be fully and clearly described in requests for bids or proposals, and only those evaluation criteria and standards must be used to evaluate bids or proposals received. 11. Subject to the Access to Information Act, bidders and proponents must, upon request, be given access to information about their own bids or proposals and how these were evaluated, within a reasonable time after the procurement competition. 12. There must be a formal bid challenge mechanism, based on the following terms of reference: (a) bidders and proponents must be given a reasonable opportunity to register complaints; (b) complainants must have a responsibility to make all reasonable attempts to settle their disputes with the applicable contracting authority; (c) there must be an opportunity for redress, including compensation for costs of complaining and bid/proposal preparation costs; and (d) a mechanism to change, where warranted, government contracting policies and procedures will be provided. PART IV - FINANCIAL PROTECTION FOR SUBCONTRACTORS 13. This part applies only to contracts for a public work. Claim by unpaid subcontractors 14. (1) The Deputy Head, Department of Highways and Public Works or delegate must receive a claim for unpaid labour, material, equipment, or services, filed by a subcontractor on a contract for a public work, who has not been paid by the contractor for labour, material, equipment, or services rendered to the contractor for that contract. (2) The Deputy Head, Department of Highways and Public Works, or delegate shall process a claim pursuant to subsection (1) provided the claim is made after the payment for the labour, material, equipment, or services under his or her contract with the contractor becomes due, but not later than 90 days following the performance of the labour or services or the provision of the material or equipment, as the case may be, by the subcontractor. 15. (1) The Deputy Head, Department of Highways and Public Works, or delegate must notify the contractor and contracting authority of the claim. (2) The contracting authority must retain from monies remaining to be paid to the contractor on the contract a sum equal to the amount of the claim. (3) If the subcontractor and contractor have not reached settlement within 30 days of the receipt of notice of the claim by the contracting authority, the contracting authority must transfer the amount retained to the Deputy Head, Justice, or delegate, for disposition. 16. (1) Payment by the Government of the Yukon into a trust account or to the Supreme Court of Yukon is sufficient discharge by the government of any obligation it may have to pay the money to the contractor. (2) The Government of the Yukon has no liability to the contractor or to the subcontractor if payment pursuant to section 15 is in an amount greater or less than the amount lawfully payable by the contractor to the subcontractor. 1. The following definitions apply in this directive. Award of contract or standing offer agreement - Refers to the decision to award the contract or the standing offer agreement to the selected bidder or proponent. Bid - An offer, submitted in response to a request for bids, to supply goods or services or to purchase assets at a specific price or price formula, under stated terms and conditions. Bidder - A person, partnership or corporation who submits a bid. Bid security - Security given by a bidder or proponent to guarantee entry into a contract. Change order - A document issued by the contracting authority to change a contract. Closing time - The time and date on which bids or proposals must be received at the designated place. Contract - An agreement between a contracting authority and a contractor to provide a good, perform a service, construct a public work, or to lease real property, for consideration. Contracting authority - Any government body or government employee having authority pursuant to the Financial Administration Act to enter into a contract on behalf of the Government of the Yukon. Contractor - Any person, partnership or corporation which supplies goods or services or constructs a public work under a contract with the government. Contract price - The price or price formula stipulated in a contract. Contract security - A deposit of securities by the contractor which the contracting authority may convert to carry out the contractor's obligations under the contract. Contribution agreement - An agreement between a donor and a recipient of a contribution which describes the obligations of each party and the conditions of payment. Crown Corporation - Yukon Housing Corporation, Yukon Liquor Corporation, Workers' Compensation Health and Safety Board, Yukon Development Corporation, and Yukon Lotteries Commission. Department - A department as defined in the Financial Administration Act. Employment contract - A contract of service which establishes an employer - employee relationship. Estimated contract value - The total estimated value of the contract or standing offer agreement prior to issuing the request for bids or proposals. Evaluation criteria - Criteria against which proposals are evaluated for purposes of determining: a) which proposals qualify for consideration; and b) how to rank valid proposals. The selection of the successful proposal is based on factors which may include the effectiveness of the proposed solution, and the experience, qualifications, and financial capabilities of the proponents, rather than on price alone. Expression of interest - A publicly advertised invitation to respond with identification and qualifications, to a particular category of work or anticipated project, for the establishment of a specific source list category. Goods contract - A contract for the purchase of articles, commodities, equipment, goods, materials or supplies, which may include installation. Invitational tender - A request for bids or proposals on a contract or standing offer agreement given to a number of identified bidders or proponents. Open source list - A list of persons, partnerships and/or companies which have indicated their willingness to respond to requests for bids or proposals. Price-driven contract - A contract entered into as the result of a bid. Proposal - An offer, either unsolicited or in response to a request for proposals, to propose a solution to a problem, need or objective, under stated terms and conditions, or to establish a qualified source list. Proponent - A person, partnership or corporation who submits a proposal. Public tender - A request for bids or proposals made by public advertisement. Public work - A project involving the expenditure of public funds for building construction, heavy construction or road, sewer or water main construction as specifically defined in the request for bids or proposals for the project. Qualified source list - A list of bidders or proponents who meet the evaluation criteria specified for the award of a proposed contract. Real property lease - A lease or agreement whereby the Government of the Yukon acquires a leasehold interest in or a license to occupy real property. Rejection of bid or proposal - The determination that a bid or proposal will not be evaluated on the basis that it does not meet the requirements specified in the request for bids or proposals. Request for bids - A document defining the requirements of the contract and the minimum standards to be met by bidders so as to permit the evaluation of bids on the basis of price. Request for proposals - A document inviting a supplier(s) to propose a solution to a problem, need or objective. Standing offer agreement - A method of supply used to provide direct access to sources of supply for goods and/or services, on an as-required basis, for specific periods of time, at prearranged prices and delivery conditions. Subcontractor - A corporation, partnership or individual who has been awarded a contract by a contractor of the government and under that contract supplies goods or services or performs work on a public work for which the contractor was engaged. Unit price - A method of pricing in which the total amount payable is calculated by multiplying the number of identical units of work or items delivered by a fixed price per unit or item. Utility - A corporation which provides electrical, water, telecommunications, municipal services, or transportation services to the public. Valid bid or proposal - A bid or proposal which has not been rejected for failing to meet the requirements set out in the request for bids or proposals. Value-driven contract - A contract entered into as the result of a proposal. Yukon business - A business that meets two or more of the following criteria: Yukon resident - A person who has resided full time in the Yukon for a minimum of the immediately preceding three months. Except where otherwise provided in this directive, proof of residency for the required period will be a valid Yukon Health Care Insurance Plan card. Wages and benefits - Gross wages/salary paid as compensation to an employee or to a fund, insurer or other person for the employee's benefit. Benefits include the employer's contribution to supplementary health, life, and disability insurance and pension plans. 2. This document, in conjunction with the Contract Regulations, expresses the policy of the Government of the Yukon on the process by which the government will select contractors to supply goods and services. The objectives of this directive are to ensure that government contracting activities are carried out in a fair, fiscally responsible, accountable, open and competitive manner. 3. This directive was reviewed and approved by Management Board on March 2, 1995 by M.B.M. #95-05-02, revised on September 17, 1998 by M.B.M. #98-26-05, and can be revised only with the approval of Management Board. 4. This directive applies to all contracts except: (a) employment contracts; (b) contracts relating to projects funded by the Government of the Yukon and carried out by another party under a contribution agreement for its own use; and (c) contracts for the practice of law as defined in the Legal Professions Act 5. Subject to the terms of any agreement between the Government of the Yukon and the Government of Canada, this directive applies to projects carried out by the Government of the Yukon on behalf of the Government of Canada. 6. (1) Subject to subsection (2), this directive applies to all departments which have deputy heads as defined in the Public Service Act. (2) Where a crown corporation adopts a contracting bylaw which adheres to the Contract Regulations and is substantially consistent with this directive, and where Management Board so approves, that bylaw will apply in place of this directive. Contracts of employment not authorized 7. Nothing in this directive authorizes the appointment or employment of any person as an employee of the government. 8. Nothing in this directive authorizes the making of a payment in excess of the amount payable under the terms of the contract. 9. Nothing in this directive prohibits a contracting authority from offering incentives to prospective bidders or proponents, provided that: (a) the availability of such incentives is clearly identified in the request for bids or proposals; and (b) the incentives do not arbitrarily or unnecessarily limit the number of bidders or proponents. 10. Notification of any matter pursuant to this directive will be deemed to be delivered at the time transmitted by facsimile, or at the time delivered to a courier, or at the time delivered to Canada Post, as the case may be. Contracts and standing offer agreements in excess of three years 11. (1) No contract or standing offer agreement will be entered into without the approval of Management Board if the contract or standing offer agreement contains: (a) a stated initial term in excess of three (3) years; or (b) a stated initial term of three (3) years or less, but containing provision for renewal so that the aggregate of the initial term and the renewals may exceed three (3) years; or (c) a probable time of performance in excess of three (3) years. (2) Contracts or standing offer agreements entered into pursuant to subsection (1) will be identified in the contract registry(ies) maintained pursuant to section 39. 12. (1) Contracting authorities will, before the end of each fiscal year quarter, provide to the Deputy Head, Department of Highways and Public Works, or delegate a listing of contracts and standing offer agreements in excess of $25,000 contemplated to be awarded in the following quarter. (2) Where a department acquires goods or services through a contracting authority outside the department, the department will provide the information required under subsection (1) to the Deputy Head, Department of Highways and Public Works, or delegate. (3) The Deputy Head, Department of Highways and Public Works, or delegate will make available to the public the information provided by contracting authorities in subsections (1) and (2). 13. Contracting authorities, when contracting for goods and services for use in the communities, will make best efforts to support community-based businesses within the context of existing contracting policy by: (a) ensuring that community-based businesses have the opportunity to submit bids or proposals on contracts, and that they are competing on an equitable basis with contractors from outside the community, (b) putting community-related contracting decisions into the hands of community-based employees, to the maximum extent possible, (c) developing communications channels with local business organizations and contractors that will enable them to anticipate government needs in the community, and to develop their businesses to meet those needs, and (d) taking into account the full cost of contracting outside the community when the goods and services are to be utilized within the community. 14. To determine whether or not potential bidders/proponents for government contracts meet the three months' residency requirement under the definition of "Yukon resident" in this directive: (a) beneficiaries enrolled under the Yukon Indian land claim are deemed to be Yukon residents if they are ordinarily resident in the Yukon. "Ordinarily resident" means they have lived the majority of their lives in the Yukon; (b) temporary absences from the Yukon during the immediately preceding three months for reasons of medical treatment, education, military service, travel or incarceration shall be considered periods of residence if the applicant was ordinarily resident prior to such absences; (c) where an applicant does not wish to show a Yukon Health Care Insurance Plan card as proof of the required three months' residency, other valid evidence of residency may be accepted. Pre-tender liaison with industry 15. (1) Prior to issuing requests for bids or proposals for contracts greater than $25,000, contracting authorities will make available to interested prospective bidders or proponents, information related to: (a) the evaluation criteria for future requests for proposals; (b) the specifications for future contracts; and (c) plans for issuing requests for bids or proposals. (2) Contracting authorities will provide adequate opportunity to receive input from interested suppliers related to the contract specifications and plans for bidding in (1). PART III - COMPETITIVE BIDDING REQUIREMENTS Request for bids or proposals required 16. Except as provided in section 20, the contracting authority will invite bids or proposals in accordance with this directive prior to entering into any contract or standing offer agreement. 17. Except for bids or proposals requested pursuant to section 19 or 36, upon request, the contracting authority will, without delay, issue a request for bids or proposals to any prospective bidder or proponent. 18. (1) For price-driven contracts: (a) below $10,000 estimated contract value, contracting authorities may enter into a contract or standing offer agreement directly with a bidder; (b) between $10,000 and $50,000, contracting authorities will either invite bids from three sources (or fewer if three sources can not be identified), or issue publicly advertised requests for bids; and (c) above $50,000, contracting authorities will issue publicly advertised requests for bids, or invite bids from all sources on an open source list. (2) For value-driven contracts: (a) below $25,000 estimated contract value, contracting authorities may enter into a contract or standing offer agreement directly with a proponent; (b) between $25,000 and $50,000, contracting authorities will either invite proposals from three sources (or fewer if three sources can not be identified), or issue publicly advertised requests for proposals; and (c) above $50,000, contracting authorities will issue publicly advertised requests for proposals, or invite proposals from all sources on an open source list. (3) For goods procurement: (a) below $10,000 estimated contract value, contracting authorities may enter into a contract or standing offer agreement directly with a bidder or proponent; (b) between $10,000 and $25,000, contracting authorities will either invite bids or proposals from three sources (or fewer if three sources can not be identified), or issue publicly advertised requests for bids or proposals; and (c) above $25,000, contracting authorities will issue publicly advertised requests for bids or proposals, or invite bids or proposals from all sources on an open source list. (4) For goods or services related to work to be carried out primarily in the Yukon and where the estimated value of the good or service is more than $1,000 and within the limits specified in (1)(a), (2)(a), and (3)(a), contracting authorities may enter into contracts directly only with contractors that are Yukon businesses, except as otherwise authorized by the Deputy Head of the contracting authority for specific contracts. 19. (1) Where contracting authorities invite bids or proposals, if three or more Yukon businesses who provide the goods and services required can be identified on an open or qualified government source list, the contracting authority shall invite bids or proposals only from Yukon businesses, except as otherwise authorized by the Deputy Head of the contracting department. (2) Subsection 19.(1) expires on October 15, 2000 unless, prior to that date, Management Board directs that it shall continue in force. When request for bids or proposals not required 20. The contracting authority may enter into a contract or standing offer agreement directly with a bidder or proponent: (a) as provided in paragraphs 18.(1)(a), 18.(2)(a), and 18.(3)(a), subject to subsection 18.(4); (b) in the event of an emergency as defined in the Civil Emergency Measures Act or its regulations; (c) where immediate action is required to prevent or respond to injury or death to persons or animals or livestock, or damage to property; (d) where the contract is to extend the existing occupancy of substantially the same real property leased by the contracting authority; (e) for an agreement with a utility for work on the utility's facilities; (f) in special cases authorized by the Minister of the contracting authority; (g) where the contract relates to the protection of exclusive rights, such as patents, or where the existing equipment compels the contracting authority to purchase specific equipment from a specific supplier for reasons of compatibility; or (h) where the contract will be awarded pursuant to a standing offer agreement entered into pursuant to this directive. 21. Publicly advertised requests for bids or proposals for the supply of goods and services and responses to these solicitations will be issued and received by the Deputy Head, Department of Highways and Public Works, or delegate. Effect of bids higher than estimated contract value 22. Subject to section 23, where all bids or proposals submitted in response to a request for bids or proposals are higher than the estimated contract value, the request for bids or proposals will not necessarily be invalidated for this reason. 23. (1) Except in the case of a goods contract, the contracting authority will not award a contract in excess of $55,000 where the bids or proposals were solicited by inviting only a limited number of sources on an open source list. (2) In the case of a goods contract, the contracting authority will not award a contract in excess of $27,500 where the bids or proposals were solicited by inviting only a limited number of sources on an open source list. (3) In the event that all valid bids or proposals received in response to an invitational request for bids or proposals are in excess of the dollar limits specified in subsections (1) and (2), the contracting authority will cancel the request for bids or proposals and may only reissue the request for bids or proposals by issuing a publicly advertised request for bids or proposals, or by inviting all sources on an open source list. Non-disclosure of estimated contract value 24. Subject to subsection 70.(1), the contracting authority may refuse to disclose the estimated contract value. 25. (1) A contracting authority may maintain any number of open source lists for use in implementing the provisions of this directive. (2) Where contracting authorities create new open or qualified source lists, or add to or delete names from open source lists, they will immediately inform the Deputy Head, Department of Highways and Public Works, or delegate. 26. A contracting authority will define the scope of each open source list in terms of types of goods and services, and will use the open source list only for requests for bids or proposals within the defined scope. 27. The Deputy Head, Department of Highways and Public Works, or delegate will issue public invitations to register on open source lists in April and October each year and at other times at the request of contracting authorities. 28. The Deputy Head, Department of Highways and Public Works, or delegate will establish, maintain and make available a current register of all open and qualified source lists. 29. Upon request, the name of a prospective bidder or proponent will be added to open source lists at any time. 30. Subject to section 17, a contracting authority may decide the method by which names are selected from the open source list for any given request for bids or proposals. 31. Contracting authorities may remove from open source lists the names of prospective bidders and proponents who, within the 12 month period immediately preceding, have not responded to a publicly advertised invitation to confirm or renew their listing on the open source list. Prequalifying bidders or proponents 32. (1) Where a contracting authority pre-qualifies bidders or proponents before issuing a request for bids or proposals for a contract, it will establish a qualified source list pursuant to this directive, which will be valid for up to one year. (2) The contracting authority will define the scope of each qualified source list in terms of the specific contracts which are contemplated. 33. (1) A contracting authority will publicly advertise for bidders or proponents to submit their qualifications for qualified source lists. (2) Such requests for submission of qualifications will be considered to be requests for proposals as defined by this directive and will be conducted pursuant to this directive. 34. Responses to requests for proposals issued pursuant to section 33 will be considered proposals as defined by this directive, and will be evaluated accordingly. 35. A contracting authority will not add the name of a bidder or proponent to qualified source lists except through the evaluation and acceptance of the proponent's qualifications submitted in response to the request for bids or proposals. 36. All available bidders or proponents on a qualified source list will be invited to submit bids or proposals for the specific contract or contracts for which they were pre-qualified. 37. Contracting authorities who are authorized to enter into contracts for goods and services, may create, maintain and use standing offer agreements in accordance with this directive. Discussion of request for bids or proposals 38. Subject to section 17, no information released by the contracting authority to one bidder or proponent may be withheld from another bidder or proponent. 39. (1) The Deputy Head, Department of Highways and Public Works, or delegate, will maintain a registry(ies) of all contracts, contract change orders and standing offer agreements. (2) The registry(ies) maintained pursuant to subsection (1) will be public document(s). Contracting information for Yukon First Nations 40. Based upon the obligations of the Government of the Yukon arising out of the Umbrella Final Agreement, the Deputy Head, Department of Highways and Public Works, or delegate will: (a) upon request, provide to Yukon First Nations and First Nations corporations information on: (i) how to compete for contracts and standing offer agreements; and (ii) how to register on open source lists and submit proposals for qualified source lists; (b) inform all Yukon First Nations of invitations to register on open source lists issued under section 27, (c) notify Yukon First Nations which have indicated the wish to be so advised of all publicly advertised requests for bids or proposals related to contracts, standing offer agreements, and prequalification of bidders or proponents, (d) inform Yukon First Nations on a regular basis of contracts awarded in excess of $50,000, or in the case of contracts for goods, in excess of $25,000, in the First Nations' traditional territories for which requests for bids or proposals were not publicly advertised. 41. Where a contracting authority invites bids or proposals from a limited number of prospective bidders or proponents pursuant to paragraphs 18.(1)(b), 18.(2)(b), and 18.(3)(b), the contracting authority will give notice of the invitation to all Yukon First Nations which have registered on open source lists maintained under this directive. PART IV - THE COMPETITIVE BIDDING PROCESS Request for bids or proposals inclusive 42. All terms and conditions of the request for bids or proposals must be stated in the request for bids or proposals. Information in request for bids or proposals 43. A request for bids or proposals will include the following information: (a) the essential terms of the contract(s) or standing offer agreement(s) to be awarded, including: (i) a full description of the goods or services to be delivered, including estimated quantities where applicable; (ii) the form, amount, and terms and conditions of any required performance security, or any performance penalty permitted by law, if any; (iii) the completion date or any other timing considerations which are to be terms of the contract(s) or standing offer agreement(s); (iv) other terms and conditions which would be relevant in setting a price for the goods or services; and (v) indication that the request for bids or proposals is for a qualified source list, or a standing offer agreement, if this is the case. (b) terms and conditions for the submission of bids or proposals, including: (i) the form in which bids or proposals are to be submitted; (ii) the information required to be provided in the bid or proposal; (iii) the place to which bids or proposals must be submitted; and (iv) the closing time. (c) a full description of the manner in which bids or proposals will be evaluated, including: (i) the method to be used to evaluate bids or proposals; (ii) the evaluation criteria, stated in such a manner as to clearly identify all the information to be provided by the bidder or proponent which will be used to evaluate the bid or proposal; and (iii) in the case of proposals, the weighting assigned to each evaluation criterion. (d) the tax-exempt status of the Government of the Yukon under the Goods and Services Tax (GST); (e) a provision that bids or proposals do not contain an amount for the GST; (f) the name and title of the designated contact person; and (g) in the case of publicly advertised requests for bids or proposals, the time and place of tender opening. Form of bid for public works projects 44. For public works bids, the document on which bidders submit their bids shall include: (a) a section in which bidders must list the subcontractors they will use and/or indicate where they will use "own force" in carrying out the work; (b) a clear statement that the successful bidder will be required to obtain prior approval of the contracting authority in order to employ subcontractors other than those listed; (c) a clear statement that the bidder must make best efforts to invite Yukon businesses (or local businesses, where the work site is located in a rural community) to bid on subcontracts related to the work of the contract and, that the contracting authority may require the bidder to provide proof of the best efforts taken; (d) a section where the bidder declares that best efforts have been made to invite subcontract bids from Yukon and/or local businesses. 45. When public notice of a request for bids or proposals is given, the public notice need not contain the full request for bids or proposals, but must state where prospective bidders or proponents may pick up the full request for bids or proposals. 46. (1) Evaluation criteria will take the form of one or both: (a) minimum standards to be met; (b) ranking criteria. (2) Where ranking criteria are used, they may include: (a) the experience of the bidder or proponent with similar contracts or standing offer agreements; (b) the value of a partnership between an outside firm and a Yukon business for the purpose of carrying out the work under a contract; (c) the dollar amount of the bid or proposal submitted; (d) the qualifications of the bidder or proponent for the contract or standing offer agreement; (e) the means proposed by the bidder or proponent to carry out the contract or standing offer agreement; (f) the schedule proposed by the bidder or proponent; or (g) any other criteria relevant to the particular request for proposals. (3) Where ranking criteria are used, they shall include: (a) the methods to be used by the proponent to maximize the full value of local community and Yukon content in carrying out the work, which may include local staff, office, knowledge, materials and culture. Use of specific product trade names 47. Requests for bids or proposals may refer to specific product trade names/brands only to establish a standard of performance expected, except where the requirement for a specific product has been explicitly justified, in which case the request for bids or proposals will clearly stipulate the requirement for the product. Availability of requests for bids or proposals 48. The contracting authority will use its best effort to make requests for bids or proposals, or addenda to requests for bids or proposals, available to all bidders or proponents at the same time. 49. Where the value of the contract or standing offer agreement is estimated at $50,000 or greater, or in the case of a goods contract is estimated at $25,000 or greater, or the request for bids or proposals was publicly advertised, then: (a) all bids or proposals will be opened at a designated time and place in the presence of at least one witness; (b) anyone who wishes to be present at the bid or proposal opening will be permitted to attend; and (c) upon opening each bid or proposal, the following will be recorded in a written log and announced to those present: (i) the name of the bidder or proponent; (ii) the amount and form of bid security provided with the bid or proposal, if applicable; and (iii) in the case of a bid, the amount of the bid, where practicable. 50. (1) The contracting authority will reject any bids or proposals received after the closing time. (2) Late bids or proposals will be returned to the bidder or proponent. In the case of sealed bids or proposals, they will be returned unopened. Rejection of timely bids or proposals 51. The contracting authority may reject a bid or proposal which has been received prior to the closing time only where: (a) it is not submitted in the required form; (b) there are significant omissions of required information; (c) a bid or proposal is not signed as required in the request for bids or proposals; (d) the required bid security in the required form is not provided; (e) the bid or proposal has conditions attached which are not authorized by the request for bids or proposals; (f) the bid or proposal fails to meet one or more standards specified in the request for bids or proposals; or (g) there is substantial evidence that, pursuant to the evaluation criteria contained in the request for bids or proposals, a bidder or proponent would be unable to carry out the contract as specified. 52. (1) Where a contracting authority rejects a bid or proposal, the contracting authority will notify the bidder or proponent, by the quickest means available, that the bid or proposal was rejected. In the case of a written bid or proposal, this will be confirmed in writing. (2) The contracting authority will, upon request, provide to rejected bidders or proponents a full explanation why their bid or proposal has been rejected. Two stage evaluations of proposals 53. When evaluating proposals, contracting authorities will evaluate and score non-price factors before taking price into account. Contracting authority to rank bids or proposals 54. The contracting authority will evaluate and rank bids or proposals not rejected pursuant to sections 50 or 51 solely on the basis of the evaluation criteria and requirements contained in the request for bids or proposals. Award of contract or standing offer agreement 55. (1) Subject to subsection (3), when a single contract or standing offer agreement is awarded, it will be awarded to the bidder who submitted the lowest bid or to the proponent who submitted the highest ranking proposal. (2) Subject to subsection (3), where more than one contract or standing offer agreement is awarded pursuant to a request for bids or proposals, they will be awarded to: (a) bidders in the sequence in which their bids were received, from lowest price bid to highest, or (b) proponents in the sequence in which their proposals were ranked, from highest to lowest. (3) Only Management Board may authorize bypassing the lowest price bid or the highest ranking proposal. Placement on qualified source list 56. If the purpose of the request for proposals was to establish a qualified source list, the contracting authority will place all bidders or proponents who meet the qualifications on the qualified source list and notify them. 57. Where required by the contracting authority, bid security will be in the amount specified by the contracting authority and in the form of (a) a bid bond, or (b) cash, bank draft, certified cheque, Canadian postal money order, assignable redeemable term deposit, bearer or assignable bonds of the Government of Canada or of the government of a province, or irrevocable letter of guaranteed credit acceptable to the Government of the Yukon. 58. Where unit prices are requested and the bid or proposal contains an error in calculating the estimated contract value, the unit price will prevail. PART V - ADMINISTRATION OF THE CONTRACT 59. Contract security, where required, will be in the amount specified by the contracting authority and in the form of (a) a security bond acceptable to the Government of the Yukon, or (b) cash, bank draft, certified cheque, Canadian postal money order, assignable redeemable term deposit, bearer or assignable bonds of the Government of Canada or of the government of a province, or irrevocable letter of guaranteed credit acceptable to the Government of the Yukon. 60. Where the amount payable under a contract is increased or decreased, the contracting authority may require a corresponding change in contract security. Replacement of contract security 61. At any time during the contract period or warranty period for the contract, the contractor may replace the form of contract security provided to the contracting authority by another form of contract security listed in section 59. 62. The form and amount of any insurance required will be defined in the request for bids or proposals. 63. Contracting authorities may issue change orders to accommodate changes in the scope, schedule or price of the contract that could not have been reasonably foreseen when the request for bids or proposals was issued. Disclosure of extended contracts 64. (1) In the case of a sole sourced contract pursuant to paragraphs 18.(1)(a), 18.(2)(a), and 18.(3)(a), where a contracting authority increases the value of the contract past the limit for sole sourcing permitted by these paragraphs, the contracting authority will immediately identify the contract to the Deputy Head of the Department of Highways and Public Works, or delegate. (2) In the case of an invitationally sourced contract pursuant to paragraphs 18(1)(b), 18.(2)(b), and 18.(3)(b), where a contracting authority increases the value of the contract past the limit for invitational tendering permitted by these paragraphs, the contracting authority will immediately identify the contract to the Deputy Head, Department of Highways and Public Works, or delegate. (3) The Deputy Head, Department of Highways and Public Works, or delegate, will identify all contracts under this section to the public at regular intervals. PART VI - BID CHALLENGE PROCESS65. (1) The Minister of Highways and Public Works will appoint a standing bid challenge committee to act on complaints registered pursuant to this directive. (2) The committee will be made up of a chair, an alternate chair who will act in the absence of the chair, five (5) representatives from the Government of the Yukon, and five (5) representatives from the public. (3) Each appointment will be for a term of up to two (2) years, and may be renewed. (4) Within the policy laid out in this directive, the committee may establish its own rules of procedure. 66. (1) The Deputy Head of the Department of Highways and Public Works will accept a complaint made in writing by a bidder or proponent or prospective bidder or proponent who has reason to believe that a Deputy Head, or a public servant to whom a Deputy Head has delegated contracting authority, has treated them unfairly or has not followed the process required by the Contract Regulations or this directive, provided that the complaint is received (a) up to 60 days following the closing time, or up to 15 days following the award of the contract or standing offer agreement, whichever is later, or (b) in the event of an extension of a standing offer agreement, up to 30 days following the date of the extension. (2) The bid challenge process described in this Part does not apply to decisions made under paragraphs 20 (a) to (f) of this directive. (3) The Deputy Head, Department of Highways and Public Works may require the complainant to provide full details related to the complaint, including their efforts to resolve the complaint directly with the contracting authority. (4) The Deputy Head, Department of Highways and Public Works will, without undue delay, forward the complaint to the Deputy Head of the contracting authority and to the bid challenge committee established pursuant to section 65. 67. The registration of a complaint pursuant to section 66 will not require the contracting authority to delay award of the contract. 68. (1) The contracting authority will provide a written report about the circumstances relating to the complaint to the chair without delay. (2) The chair of the bid challenge committee without delay will conduct an initial review of the complaint to determine whether or not there will be an inquiry or hearing. (3) A complaint registered with the committee which is found by the chair to warrant a hearing will be heard by a panel of three (3) members consisting of the chair and one (1) member appointed by the chair from the representatives of the government and one (1) member appointed by the chair from the representatives of the public. (4) Where possible, the qualifications of the members selected by the chair to hear a complaint will be appropriate to the matter under consideration. (5) The panel will hear and consider the complaint within a reasonable time following registration of the complaint. (6) The panel will allow the complainant and the contracting authority against whom the complaint was registered to address the panel in person and in writing. (7) The chair may call upon such advisors as the panel considers advisable to report to the panel. (8) Complaints may be heard in any place in the Yukon. (9) The panel will not cancel, revoke, amend or alter a contract. 69. (1) The panel may refuse to hear and consider, or may cease to consider a complaint on the grounds that: (a) the complaint is trivial, frivolous, vexatious or not made in good faith, or (b) the complainant does not have a sufficient personal interest in the subject matter of the complaint. (2) Where the panel refuses to consider or ceases to consider a complaint, the chair will inform the complainant and the contracting authority against whom the complaint was registered and may state reasons therefor. 70. (1) Notwithstanding any restrictions on the disclosure of documents in this directive, the panel may examine any documents relating to the complaint. (2) All information used by the panel in its deliberations, and which may be disclosed under the Access to Information and Protection of Privacy Act, will be disclosed to both parties to the complaint. 71. (1) Where the panel considers that a complaint is valid, it may recommend that the contracting authority pay to the complainant compensation for: (a) the complainant's reasonable costs in preparing a bid or proposal; and/or (b) the complainant's reasonable costs for participating in the inquiry or hearing. (2) In making its decision, the panel will consider all the circumstances relevant to the complaint, including: (a) the seriousness of any deficiency in the procurement process found by the panel; (b) the degree to which the complainant and all other interested parties were prejudiced; (c) the degree to which the integrity and efficiency of the competitive procurement system was prejudiced; and (d) whether the parties acted in good faith. 72. The panel will make a report of its findings and recommendations, if any, to the Deputy Head of the contracting authority and to the complainant. 73. (1) Where the panel recommends a change to government policy or procedure, the Deputy Head of the contracting authority will, within a reasonable period of time, address the recommendation to the government body which has the authority to consider, and if warranted, to act on the recommendation. (2) The Deputy Head of the contracting authority will, within a reasonable period of time, provide to the chair a written response(s) which describe(s) progress being made in addressing the panel's recommendation(s). The Deputy Head will provide a copy of the response(s) to his or her Minister. 74. (1) The chair will forward a copy of the Deputy Head's response(s) to the complainant. (2) On forwarding the copy of the Deputy Head's response(s) to the complainant pursuant to subsection (1), the chair will forward a copy of all material relating to the complaint to the Deputy Head of the Department of Highways and Public Works. Revisions:
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For more information contact Guenther Mueller:
2nd Floor, 9010 Quartz Road
Whitehorse, Yukon
Phone: (867) 667-5262
Toll free (In Yukon): 1-800-661-0408, local 5262
Fax: (867) 393-6245
Email: contracts@gov.yk.ca
