Chapter 9 - Special Procurements

Section 9A: Purchases from CORCAN

Requisition Receipt

9A.1 (2002-05-24) In compliance with Cabinet Decision 320-74RD, dated May 16, 1974, Public Works and Government Services Canada (PWGSC), along with other federal government departments will, whenever possible, provide CORCAN with stable market outlets for its goods and services. This policy was reviewed and confirmed by Treasury Board on July 25, 1995.

9A.2 (2005-12-16) Article 1018 2(d) of the North America Free Trade Agreement allows for the exemption of procurements relating to goods or services of prison labour. A similar provision exists in the World Trade Organization Agreement on Government Procurement and in the Agreement on Internal Trade, Article 507 (c).

9A.3 (2003-12-12) When in receipt of a requisition for which the client has specified that CORCAN is the preferred source of supply, the contracting officer will support the award of the requirement to CORCAN and issue a Stores Transfer Order. The client need not provide justification for purchasing CORCAN goods and services (see 9A.8).

9A.4 (2002-05-24) When CORCAN has not been specified as a source of supply but can meet the requirement, the contracting officer, wherever possible and in recognition of the potential benefits to be derived, will recommend to the client that CORCAN be considered as a source of supply

9A.5 (2002-05-24) There are a number of procurement methods available to access goods and services from CORCAN including Supply Arrangement number E60PQ-000008/001/PQ.

9A.6 (2002-05-24) Goods and services acquired from CORCAN must be comparable in price, delivery, performance and quality to those that PWGSC would have received from private sector suppliers had they been awarded the same business.

Memorandum of Understanding

9A.7 (2002-05-24) Procurements from CORCAN are to be carried out in accordance with the Memorandum of Understanding (MOU) (see Appendix A) ratified on 2 January 2001, by the Deputy Minister, PWGSC, and the Commissioner of Corrections, Correctional Services Canada. The attached MOU outlines both PWGSC and CORCAN responsibilities.

Implementation

9A.8 (2003-12-12) Documentation of procurements from CORCAN will take the form of 'Stores Transfer Orders', since these arrangements are not contracts within the meaning of the Government Contracts Regulations (GCR) and the Treasury Board (TB) Contracts Directive. Existing contract and amendment forms are to be employed, and will be processed in the normal manner, with the following changes:

1. delete the word 'CONTRACT' and substitute the words 'STORES TRANSFER ORDER';
2. insert the following as the first item in the contract under 'Description of Supplies and/or Services':

   'Stores Transfer Order

   This is not a contract. '

9A.9 (2003-12-12) Although arrangements with CORCAN are not governed by the GCR and the TB Contracts Directive, all existing departmental limits governing the approval of entry into and signing of contracts apply.

Appendix A

(2002-05-24)

Memorandum of Understanding Between

Public Works and Government Services Canada

and CORCAN

(SOA of the Correctional Service of Canada)

This Memorandum of Understanding (MOU) supersedes the PWGSC/CSC agreement ratified on June 14, 1988.

1. Purpose

The purpose of this memorandum is to record agreement between the Department of Public Works and Government Services (PWGSC) and CORCAN (SOA of Correctional Service of Canada (CSC) with respect to orders placed by PWGSC for goods and/or services from CORCAN.

2. Basis for Preferential Access

In May 1974, in recognition of the social value of the training and employment of federally incarcerated offenders, Cabinet directed that, whenever possible, DSS (now part of PWGSC) and other government departments should provide correctional industries with adequate, stable and continuing market outlets for their manufactured goods.

By buying manufactured goods (office furniture, workstations, filing cabinet, dormitory furniture and furnishings) from CORCAN, the Government is lowering the cost of incarceration, and providing offenders with work related training which is essential for becoming self sufficient, law abiding citizens upon their release. For departments and agencies procuring CORCAN products, they are indeed buying truly Canadian materials and services that are backed by a sister agency, and saving a significant amount of time and energy because of a much simpler procurement process.

3. Requisites for PWGSC Business with CORCAN

1. PWGSC must maintain good customer and supplier relations. Therefore, in allocating business to CORCAN, PWGSC will consider the impact on customer departments and on Canadian suppliers likely to be affected, particularly small business.
2. PWGSC recognizes that CORCAN has the mandate to provide employment and training to federal offenders in order to give offenders the skills and attitudes they will need when they return to society and become productive employees. CORCAN does this by marketing the products and services produced by federal offenders.
3. PWGSC recognizes that the department should assist CORCAN with the promotion of CORCAN products.
4. CORCAN recognizes that it is the one primarily responsible for marketing its products.
5. Once business has been accepted, CORCAN must undertake to fulfill its obligations to PWGSC.
6. For all business allocated by PWGSC to CORCAN, the quality standards and delivery performance must be comparable to those which PWGSC would have demanded and received from private sector suppliers.

4. Pricing Policy

CORCAN product prices are to be comparable to the most recent prices contracted for with private sector suppliers for like products, quality and quantity.

5. Determination of Allocation

On receipt of a requisition for which the client has specified that CORCAN is the preferred source of supply, the contracting officer will support the award of all or part of a requirement to CORCAN.

When CORCAN has not been specified as a source of supply but can meet the requirement, the contracting officer, wherever possible and in recognition of the potential benefits to be derived, will recommend to the client that CORCAN be considered as a source of supply.

Except where a PWGSC analysis can demonstrate a prohibitive impact on a given Canadian industry, the share assigned to CORCAN will normally be limited only by the volume which CORCAN is willing and able to provide.

6. Review Process

At the request of either party, PWGSC and CORCAN agree to conduct a review of this PWGSC/CSC Memorandum of Understanding.

7. Implementation

The CEO of CORCAN and the Director General, Supply Program Management Sector, PWGSC, are responsible for the review and implementation of this memorandum.

8. Term of Agreement

This Agreement is effective from date of signatures and will remain in effect until terminated by mutual agreement of both parties (see paragraph REVIEW PROCESS).

9. Signatures

Signed this 2 day of January, 2001 at Ottawa .

______________________
Ranald A. Quail : Deputy Minister, PWGSC

______________________
Lucie McClung: Commissioner of the Correctional Service of Canada

Section 9B: United States Foreign Military Sales

9B.1 (1994-06-23) The United States (U.S.) government 'Arms Export Control Act‘ establishes the rationale for Foreign Military Sales (FMS) by recognizing that the U.S. and other countries continue to have a valid requirement for effective and mutually beneficial defence relationships.

9B.2 (1994-06-23) FMS shall be considered as a method of procurement when the goods or services required relate to military equipment of U.S. origin and when, on the basis of the information available at the time, those goods and services are available or can be made available from the U.S. Department of Defense (DOD).

Requisition Receipt

9B.3 (1994-06-23) When Public Works and Government Services Canada (PWGSC) headquarters determines that an entire requirement will be sole-sourced to the U.S. FMS Program, the requisition is to be reallocated to PWGSC Washington. For non-Co-Operative Logistics (COLOG) requirements, PWGSC headquarters will include in the reallocated file a statement confirming the sole source decision with applicable documentation, such as Procurement Review Committee (PRC) (Short Range Acquisitions Plan {SRAP}) decisions, and the client's justification. For COLOG requirements, PWGSC headquarters will include in the reallocated file the client's justification as indicated in the Procurement Strategy Committee record of decision resulting from SRAP.

When PWGSC headquarters determines that only part of the requirement will be sole sourced to the U.S. FMS Program, an extract file is to be processed. (See 3.005).

9B.4 (1994-06-23) The PWGSC Washington Directorate (PWGSC[W]), in its capacity as the sole accredited Canadian Procurement Agency to the U.S. DOD, shall be the departmental agency responsible for dealing with the U.S. government on all contractual matters directly related to FMS and shall coordinate all pertinent contract and administrative arrangements in the U.S. on behalf of PWGSC and its clients.

Definitions

9B.5 (1994-06-23) FMS is a Security Assistance Program which is administered by the U.S. DOD and which allows eligible foreign governments and international agencies to purchase defense-related articles and services from the U.S. government.

9B.6 (1994-06-23) Defined Order Cases are used when the material supplied or the services provided are explicitly stated in the Letter of Offer and Acceptance. This includes the acquisition of major weapon systems and related requirements such as spares packages, technical data packages, controlled items and the applicable publications, etc.

9B.7 (1994-06-23) Blanket Order Cases are used when there is no definitive listing of items or of quantities required. These agreements which are similar to standing offers, allow clients to submit requirements directly to the identified U.S. military organization through the use of the Direct Requisitioning Procedures (DRP) with the U.S. Navy or Blanket Open End (BOE) with the U.S. Army. Support equipment including assemblies, components, special tools, test equipment, training aid devices, minor modifications performed at U.S. installations, repair and return services, training, etc., are usually the subject of Blanket Order Cases. This category of FMS cases (contracts) does not necessitate the purchase of an equity. For the purposes of sections 9B and 9C, this category shall be deemed to fall under the COLOG arrangement.

9B.8 (1994-06-23) COLOG: A supply arrangement, similar to Standing Offers, which is negotiated with the U.S. DOD under the auspices of FMS. It enables the Canadian Department of National Defence (DND) to obtain directly from the supply systems operated by the U.S. DOD, spare parts and accessories needed for Crown-owned military equipment of U.S. origin. This category of FMS cases (contracts) necessitates the purchase of an equity in the supply system of the appropriate military organization.

9B.9 (1998-02-16) Trigger Price: A price expressed in Canadian dollars representing the cost of articles offered by the U.S. DOD, increased by a factor representing administrative costs, foreign exchange, sales tax, transportation, duty, the Goods and Services Tax (GST), and/or the Harmonized Sales Tax (HST), contractor overhead and profit, etc. This price is intended as a reference point to assist DND and PWGSC contracting officers in determining whether it would be more advantageous for Canada to acquire an item from sources in Canada (i.e. item of Canadian manufacture) or from the U.S. government.

Planning

9B.10 (1994-06-23) Through its Security Assistance Policy, the U.S. government provides for various forms of security assistance to other nations.

9B.11 (1994-06-23) FMS is a large and complex program which is administered by the U.S. DOD. In Canada, PWGSC, as well as the client, plays an important role in the implementation and maintenance of this program.

9B.12 (1994-06-23) Transactions initiated within the FMS Program are covered under basic categories of contracts (known as cases in the U.S. military organizations). The main categories are:

1. Defined Order Cases;
2. Blanket Order Cases including Blanket Open End (BOE) arrangements through the U.S. Army and Direct Requisitioning Procedures (DRP) through the U.S. Navy; and
3. Co-Operative Logistics Supply Support Arrangements, commonly referred to as COLOG in Canada and CLSSA in the United States.

9B.13 (2005-12-16) PWGSC headquarters shall determine, before procurement through FMS is initiated, whether the provisions of the North American Free Trade Agreement (NAFTA) or the World Trade Organization Agreement on Government Procurement (WTO-AGP) apply and shall take action accordingly. When these provisions do not apply, PWGSC shall determine whether there is an existing or potential source of supply in Canada and after consultations with DND, or any other client, shall establish whether in the circumstances, it would be more advantageous for the Government of Canada to procure in Canada or directly from the original equipment manufacturer in the U.S. or from the U.S. DoD.

Contracting Protocol

9B.14 (1994-06-23) Contracting with the U.S. DOD for the supply of material or for the provision of services on a government-to-government basis, is effected through the exchange of a Letter of Request (LOR) prepared by Canada and of a Letter of Offer and Acceptance (LOA) prepared by the U.S.

Time Frames

9B.15 (1994-06-23) The standard period of time for a response from the U.S. DOD to an LOR submitted by PWGSC(W) on behalf of Canada, is as follows:

1. 45 days from the date of receipt of the LOR for an official Price and Availability;
2. 90 days from the date of receipt of the LOR for an LOA not requiring notification to Congress;
3. 105 days from the date of receipt of the LOR for an LOA requiring notification to Congress (applicable to acquisitions of equipment valued at $14,000,000 or more);
4. Up to nine months in the case of technical data packages due to special inquiries or studies to be carried out.

Procedures followed under Price Review

9B.16 (2005-12-16) PWGSC contracting officers shall determine the price and availability of material, which is reported by DND to be available through FMS/Defined Order and Blanket Cases and when the procurement in question is not subject to the procurement provisions of NAFTA or WTO-AGP.

9B.17 (1994-06-23) Items of material identified in requisitions/contract demands submitted by the client (i.e. DND) as being available through FMS shall be designated for procurement in Canada if the price offered for a domestic item through a source in Canada is below the trigger price and DND shall be so informed before a contract is awarded. Similarly, items of material identified in requisitions/contract demands as being available through FMS shall be recommended for procurement from foreign source(s) if the price offered is below that quoted from FMS and DND shall be so informed before a contract is awarded. In addition, PWGSC shall review with DND, before contract award, the business case for purchase in Canada of domestic items which may be available through FMS when the price offered through a source in Canada exceeds the FMS trigger price. Even if the price exceeds the FMS trigger price, procurement from Canadian manufacturers shall be considered when the appropriate authorities at PWGSC and at DND agree, before contract award, that it would be in the interest of the Government of Canada to procure in Canada.

9B.18 (1994-06-23) Regional offices shall refer to the applicable product manager at headquarters, for resolution, all cases of disagreement between the contracting officers of PWGSC and the designated supply officers at DND, regarding sourcing.

Pricing and Payment

9B.19 (1994-06-23) FMS agreements, in accordance with the "Arms Export Control Act", always contain a clause requiring full payment prior to the delivery of an end item.

9B.20 (1994-06-23) The FMS Program provides for an estimated case value and payment schedule. The case value includes all the additional charges, such as: packing and handling; and general and administrative costs. The item price includes the above charges and is the same that would be charged to any other purchaser, including the U.S. Armed Forces. PWGSC(W) ensures that actual payment schedule reflects actual work performance.

9B.21 (1994-06-23) Generally, the final price of material and services requested under FMS will not be known until the material has been delivered or the services provided. The final price is determined from the actual contract costs and other management costs which must be charged in accordance with U.S. laws and regulations.

9B.22 (1994-06-23) FMS agreements applicable to systems requiring a substantial production period may include a phased payment schedule.

Recoupment Charges on U.S. Government Designed Military Equipment

9B.23 (1994-12-16) Under the "Arms Export Control Act", the U.S. DoD must recoup a pro-rata share of non-recurring costs (NRCs) funded by the U.S. government on the sale of Major Defense Equipment (MDE) sold via FMS procedures. An item is considered an MDE when it is identified as Significant Military Equipment (SME) on the U.S. Munitions List (USML) and when the U.S. government has incurred either a non-recurring research and development cost for the item of more than $50 million or the item has had a total production cost of more than $200 million.

9B.24 (1994-12-16) Effective June 27, 1992, NRCs must not be charged on either FMS or Commercial contracts for Non-Major Defense Equipment (NMDE).

9B.25 (1994-12-16) Effective October 8, 1992, NRCs must not be charged on Commercial contracts for MDE.

9B.26 (1994-12-16) Recoupment must be collected on all FMS contracts for MDE unless the Defense Security Assistance Agency (DSAA) waives the charges.

9B.27 (1994-12-16) U.S. law precludes blanket waivers for NRCs on FMS contracts. However, blanket waivers have been obtained for all assets use charges and for quality assurance/inspection and contract audit services. Exemption from all other recoupment charges must be sought on a case-by-case basis, before the contract is signed.

9B.28 (1994-12-16) If the proposal/offer contains an amount for rental/asset use charges or quality assurance/inspection and contract audit services, the contracting officer should request deletion of the amount, as Canada has been granted a waiver from all such charges. (Reference: U.S. DOD FAR Supplement 245.405[3] and the DOD Security Assistance Management Manual 5105.38-M, Section 1301-1 respectively.)

NRCs - Commercial Contracts

9B.29 (1994-12-16) When soliciting proposals from U.S. or Canadian contractors for defence supplies valued at over $500,000, contracting officers must request that the proposal clearly indicate the type and amount of recoupment charges, if any, which are payable to the U.S. DOD.

9B.30 (1994-12-16) The following clause must be used in bid solicitations and contracts for defence supplies issued directly to the U.S. or Canadian defence suppliers.

'The contract price to be paid shall not include any charges for recoupment of non-recurring costs (NRCs) payable to U.S. Department of Defense.'

NRCs - FMS

9B.31 (1994-12-16) All FMS procurements are handled by the PWGSC(W) office in its capacity as the solely accredited Canadian Procurement Agency to the U.S. DOD.

9B.32 (1994-12-16) When soliciting proposals, an LOR to the U.S. DOD is generated by PWGSC(W) which includes a request for the U.S. Service to identify if NRCs are involved in this requirement. If the ensuing proposal/LOA from the U.S. DOD includes NRCs, then PWGSC(W) pursues a waiver. A request for waiver will be submitted to the Director, Defense Security Assistance Agency (DSAA), by PWGSC(W) prior to the signing of the LOA.

9B.33 (1994-12-16) Upon receipt, the request for waiver will reside on a pending list. PWGSC(W) will then work with the client to determine if there is adequate justification for submitting a standalone waiver or whether some other reciprocal arrangement can be exercised.

9B.34 (1994-12-16) When sufficient justification exists, a standalone waiver request will be submitted to DSAA by PWGSC(W). Responsibility for providing adequate justification resides with the client.

9B.35 (1994-12-16) Recoupment charges may be reduced or waived for sales that significantly advance U.S. interests in standardization with NATO, where additional or unusual benefits can be clearly identified and demonstrated. Such benefits must generally be attributable to a unique military, foreign policy, or economic advantage of the sale. Examples of specific grounds for submitting a standalone waiver request are when:

1. Canada does follow-on development of a U.S. item of potential U.S. interest;
2. an item is jointly developed by Canada and the U.S. and put into production in the U.S. and Canadian rights are involved;
3. the item is a component or subsystem required for a joint Canadian/U.S. project;
4. the inclusion of U.S. development charges is a major factor in a Canadian 'make or buy' decision;
5. a trade-off of development costs on dissimilar items may be appropriate, such as when both countries plan procurement of both items at the same time;
6. Canadian procurement of a U.S. item can be expected to influence favourable decisions or third countries to buy the U.S. item;
7. the size of the Canadian procurement is such that our share of the NRCs appears to be out of proportion;
8. specific joint operational, maintenance or logistic benefits can be identified as resulting from the sale; and
9. future Canadian repair capability may provide unique and joint benefits as a result of the sale.

Note: This list of examples is not exhaustive; clients must evaluate the potential justification on a case-by-case basis.

9B.36 (1994-12-16) When a standalone waiver is granted by the DSAA, the waiver request is removed from the pending list and the LOA amended to delete these charges.

9B.37 (1994-12-16) In the event a standalone waiver is not granted by the DSAA or it is not requested by PWGSC(W), the original request will remain outstanding on the pending list. These outstanding waiver requests are available for future consideration as non-standalone waivers, which may be granted as a method of providing funding for a specific purpose in furthering U.S. and Canadian interests.

Release of Information

9B.38 (1994-12-16) The U.S. government does not compete with U.S. industry for foreign sales and does not knowingly provide other governments with 'comparison pricing information' especially when it is known that a commercial contract is being negotiated.

Processing of Documents

9B.39 (1994-12-16) When a decision is made to satisfy a requirement through FMS, the file is either wholly reallocated or extracted to PWGSC(W) after the procurement plan/contract planning and advance approval (CPAA) is prepared and the initial requisition review is carried out by the receiving PWGSC organization (headquarters or region).

9B.40 (1994-12-16) Material to be obtained through FMS must be identified by U.S. National Stock Numbers. The second group of digits (country designator) must be 00 or 01. The designation 21, which indicates the presence of a Canadian number, is not acceptable and its use will cause the demand to be rejected.

9B.41 (1994-12-16) Each request will be reviewed by PWGSC(W) to ensure the adequacy and appropriateness of the information. If satisfactory, an LOR to the applicable U.S. Armed Forces organization will be prepared and submitted by PWGSC(W).

9B.42 (1994-12-16) Upon receipt of the LOA, PWGSC(W) will carry out a verification to determine whether the LOA corresponds to the LOR and, if satisfactory, will request funding from the main file holder in cases where the file at PWGSC(W) is an extract.

9B.43 (1994-12-16) Funds are transferred from the Canadian client to the U.S. government via a Canadian account at the Federal Reserve Bank in New York following the acceptance of the LOA by PWGSC(W). No action will be initiated by the U.S. DOD until the transfer of funds has been completed.

Contract Administration

9B.44 (1994-12-16) PWGSC(W) is responsible for contract administration including billing/payments and expediting delivery, except for COLOG.

9B.45 (1994-12-16) Program Management Reviews and/or Status Review meetings may be arranged by PWGSC(W) to allow clients to discuss related matters with representatives from the U.S. DOD.

Contract Amendments

9B.46 (1994-12-16) Contract amendments, when required, will be negotiated by PWGSC(W).

9B.47 (1994-12-16) When funds in certain contracts (cases) have not been fully expended, a case amendment extending the period of time to use up funding may be requested. This normally applies to arrangements where the scope of work is not affected.

Contract Closing

9B.48 (1994-12-16)When delivery is completed and final determination of cost is made, PWGSC(W) will initiate closing action and will seek finalization of accounts. If funds are due to Canada, a cheque payable to the Receiver General for Canada will be requested by PWGSC(W). If funds are owed to the U.S.A., funds will be requested from the Canadian client.

9B.49 (2001-12-10) Closure of FMS contracts involving procurement from commercial vendors may take place years after delivery of material because of the need to audit and renegotiate certain requirements peculiar to the U.S. DOD procurement process.

9B.50 (1994-12-16) At the time of closure, the estimated amounts in the LOA are changed to actual costs.

Section 9C: Co-Operative Logistics and Blanket Order Cases with the United States Department of Defense

9C.1 (1994-06-23) The Canada/United States of America Co-Operative Logistics (COLOG) Supply Support Arrangement was initially approved in 1965. Public Works and Government Services Canada (PWGSC) shall make the necessary arrangements to establish with the United States (U.S.) Government the contractual instruments such as COLOG arrangements or Blanket Order Cases (BOC), thus allowing the Canadian Department of National Defence (DND) to obtain directly from the U.S. Department of Defense (DOD), material and services, as required.

Requisition Receipt

9C.2 (1994-06-23) Contracting officers should refer to Chapter 9B.3 - United States Foreign Military Sales (FMS) for information concerning the requisition process of the U.S. FMS Program.

9C.3 (1994-06-23) The COLOG Operations Office in the Aerospace, Marine and Electronics Systems (AMES) Sector of the Supply Operations Services Branch shall review requisitions for COLOG and BOC and provide support to these activities as detailed under the Referral Program activities below on behalf of PWGSC.

Planning

9C.4 (1994-06-23) Under COLOG arrangements, a participating country is required to purchase an equity in the supply system of the appropriate service within the U.S. DOD, through a Stock Level Case, which is adjusted annually, up or down, depending on usage. Canada has purchased an equity in each of the three U.S. Forces supply systems, U.S. Army, Air Force and Navy, on an as required basis, and pays for only those items it actually draws out of the systems.

9C.5 (1994-06-23) Since U.S. law prohibits the U.S. DOD from expending its funds on speculative purchases for other than its own Forces, there is a requirement for deposits to be made usually quarterly, in advance, by participating foreign nations. The amount of the deposit should correspond to the anticipated delivery value in the succeeding quarter.

9C.6 (1994-06-23) A final accounting is carried out when all items have been delivered or cancelled and all discrepancies have been resolved. This accounting results in a contract amendment requiring either a final payment by Canada or a refund to Canada.

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

9C.7 (1994-06-23) It is necessary to establish a Stock Level Case, also referred to as Foreign Military Sales Order (FMSO I), to obtain COLOG support from the U.S. DOD. When the U.S. Air Force, U.S. Army or U.S. Navy, as applicable, agrees to supply, through COLOG, spare parts to the Armed Forces of a foreign nation, the U.S. material managers involved will take action to augment the U.S. DOD Supply Systems to correspond to the client's anticipated requirement.

9C.8 (1994-06-23) Stock Level Cases are negotiated annually.

Establishment of a Requisitioning Case (FMSO II)

9C.9 (1994-06-23) PWGSC establishes annually a Requisitioning Case, also known as a FMSO II, before DND is allowed to draw spare parts from the U.S. DOD supply systems.

9C.10 (1994-06-23) PWGSC has delegated to DND the responsibility for placing orders directly with the U.S. Navy, the U.S. Army and the U.S. Air Force, as applicable, once the appropriate Stock Level Case (FMSO I) and Requisitioning Case (FMSO II) are in place. Requisitions for COLOG eligible items are transmitted directly by DND to DOD by means of a computer terminal linked to the U.S. Automated Digital Network which provides direct access to the U.S. military supply systems.

Referral Program

9C.11 (1994-06-23) There are three aspects to the Referral Program:

1. Referral of items with an extended price of US$20,000 at the time of requisitioning.
2. The Quarterly List of all items procured through COLOG.
3. The Annual List of items procured through COLOG.

Note:

This is not a part of the establishment of the contract but rather action that occurs after the contract is established and throughout the life of the contract as long as 'call-ups' (COLOG Requisitions) are submitted against the case.

9C.12 (1994-06-23) The following summarizes the Referral Program:

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

COLOG Termination

9C.13 (1994-06-23) Should Canada decide to terminate COLOG arrangements, there is a process, that varies with the U.S. DOD service involved, which will identify those items that Canada is liable to procure from the U.S. DOD.

Section 9E: Use of the Defence Production Revolving Fund and Loan Account

9E.1 (1996-12-02) Under the Defence Production Act, section 16 in particular, the Minister of Public Works and Government Services (PWGSC) is authorized to acquire, utilize, store, maintain, transport, sell, exchange or otherwise dispose of defence supplies, services, projects, real or personal property. The Minister is also empowered to authorize loans or advances and loan guarantees. Expenditures incurred pursuant to the above authority are to be expended from the Consolidated Revenue Fund (CRF).

Program Description

9E.2 (1994-06-23) The Defence Production Loan Account (DPLA) provides PWGSC with an account to make loans or advances to aid in defence procurement such as working capital loans or advance payments on contracts and to make payment for such.

9E.3 (1994-06-23) Although the Adjustment of Accounts Act of 1980 eliminated the term Defence Production Revolving Fund (DPRF) from the Defence Production Act, PWGSC was advised by Treasury Board (TB) that it may continue to designate and operate the DPRF for other than loan transactions. Thus the DPRF provides PWGSC with a budgetary account to purchase defence supplies, to make payment for such and to get reimbursed out of an appropriation of a client (e.g. Department of National Defence [DND]) or by an agent of Her Majesty or by an associated government. The DPRF can be used for the following purposes:

1. to finance the stockpiling of 'essential' materiel or defence supplies;
2. to advance production of defence supplies/materiel to permit workload smoothing of defence industrial facilities; and
3. to temporarily fund the acquisition of defence supplies to meet urgent requirements pending appropriation of funds to finance unplanned requirements.

   As stated in the Defence Production Act, associated governments are the governments of the British Commonwealth and of the North Atlantic Treaty Organization (NATO), or the government of any other country designated by the Governor in Council as being a country the defence of which is vital to Canada.

9E.4 (1994-06-23) The DPRF was established for interim financing purposes as it has to be reimbursed by a client or an associated government or whoever receives the finished product. As such, the DPRF can be used to make initial payments and subsequently recover such payments from the client. It is simply a temporary accommodation and it would be illegal and improper to use it for a permanent commitment of any kind. Although the use of the DPRF requires that money expended will be reimbursed at the time delivery is made to the client, such use does not preclude the making of progress payments to suppliers and the interim recovery of these progress payments from the client.

9E.5 (1994-06-23) Expenditures charged to the DPRF may be used for the following purposes:

1. stockpiling of materials or substances, such as steel and oil, designated by the Governor in Council as essential to the needs of the community. In such cases:
   1. an Order-in-Council is required;
   2. a client appropriation is not immediately required for stockpiling essential materials, but the cost of materials used must be recovered from the appropriation of the client.
2. stockpiling of defence supplies which the Minister deems it advisable to maintain. (Certain defence supplies such as ammunition.) In such cases:
   1. an Order-in-Council is not required;
   2. although an appropriation is not immediately required for stockpiling defence supplies, DND must reimburse the DPRF from an appropriation when the finished goods are delivered to DND.
3. acquisition, storage or maintenance of defence supplies. In such cases:
   1. an Order-in-Council is not normally required;
   2. a client appropriation is required.

9E.6 (1994-06-23) Loans or advances charged to the DPLA may be used for any purpose other than for capital assistance. When loans are involved:

1. an Order-in-Council is not required;
2. although an appropriation by the client is not immediately required, the liability for any loss must ultimately be covered from the appropriation of the client.

9E.7 (1994-06-23) Losses sustained pursuant to a loan or an advance made against the DPLA can only be credited pursuant to an appropriation by Parliament.

Utilization of the DPRF and the DPLA by the Canadian Commercial Corporation

9E.8 (1994-06-23) Canadian Commercial Corporation (CCC) has the power, by virtue of section 31 of the Defence Production Act to enter into contracts to which the Defence Production Act applies utilizing the DPRF or the DPLA provided that the Minister has authorized CCC to act on the Minister's behalf under section 6 of the Defence Production Act

Limitation

9E.9 (1994-06-23) In accordance with section 19 of the Defence Production Act, the aggregate of expenditures charged to the DPRF and the DPLA shall not at any time exceed the receipts shown therein by more than $100 million.

9E.10 (1994-06-23) Financial control of the DPRF and the DPLA is the responsibility of the Finance Sector.

Planning

9E.11 (1994-06-23) Sectors/regions must ensure that utilization of the DPRF and the DPLA are in accordance with the Defence Production Act. More specifically, pursuant to section 19 of the Defence Production Act, sectors/regions must ensure that proposed expenditures are recoverable from an appropriation or are to be paid by an agent of Her Majesty or by an associated government.

9E.12 (1994-06-23) Sectors/regions must ensure that requisitions from clients or agents of Her Majesty and/or contracts, formal agreements or bona fide obligations from foreign governments have been received providing commitment authority for recovery of funds to be expended.

9E.13 (1994-06-23) The DPRF must not be used to circumvent Parliamentary Control of defence spending. As set forth in section 17 of the Defence Production Act, the Fund was established '...to pay the cost of acquisition, storage or maintenance of defence supplies requisitioned for payment out of an appropriation....' As a direct consequence of this section, no requisition for defence supplies is acceptable which contemplates the use of the DPRF to supplement that appropriation. Similarly, in accordance with section 30 of the Financial Administration Act, the DPRF is not to be used to preclude the lapse of funds.

9E.14 (1994-06-23) When recommending the use of the DPRF, the sector/region recommendation will have to be supported by an assessment of the following factors which may change from time to time:

1. stockpiling: determine if the material in question involves stockpiling of essential materials to be designated by the Governor in Council or stockpiling of defence supplies deemed necessary by the Minister;
2. conservation and coordination of defence industrial facilities: the Minister may determine that stockpiling of defence supplies is required to conserve and coordinate certain defence industrial facilities particularly where a facility may be functioning on a cyclical basis that results in disruptive fluctuations in workload, manpower, output and quality. The use of a stockpile over a planned period of time (e.g. two to five years) not only permits workload smoothing to eliminate the excesses of attempting to meet variations in the size and timing of demands but allows PWGSC to plan for the provision and sourcing of defence requirements for periods longer than one year;
3. economic considerations: better price considerations may be forthcoming as a result of using the DPRF. If price considerations are a factor, the basis of such assessment should be established using a present value or constant dollar approach, i.e. by removing the inflation factor when determining gain. To facilitate this approach, Request for Proposals should request price information on two bases in order to properly assess the economics of purchasing requirements individually or annually, as opposed to purchasing for the purposes of stockpiling. The economics of stockpiling should also take into consideration the additional costs of holding inventory such as storage and handling charges;
4. Canadian industrial benefits: in the case of procurement from a foreign contractor, any offsets that accrue to Canada should be assessed in support of the recommendation for the use of the DPRF;
5. administrative convenience: in certain cases, the use of the DPRF will facilitate the procurement function by reducing the number of contracts required. This is a particularly important factor for consideration when projects are jointly funded by more than one client or government.

Inventory Control

9E.15 (1994-06-23) When the DPRF is used for stockpiling, in accordance with section 15 of the Defence Production Act, the responsibility for inventory control and carrying out the physical inventory rests with PWGSC. Therefore, at the fiscal year's end, any residual inventories of stockpiled defence supplies or materials essential to the need of the community will appear on the DPRF annual financial statements.

Procurement Actions

9E.21 (1994-06-23) In addition to the issuance of a 'supplies contract' for the acquisition of the goods or services, the contracting officer must prepare a 'recovery contract' to recover the costs incurred on behalf of the client. The definition of these two types of contracts is as follows:

1. recovery contract - this is a contract to reimburse the Revolving Fund for the total value of the supplies procured on behalf of the client or foreign government. If more than one client is contributing to the total cost, e.g., Canada, the United States of America and Great Britain, then a separate contract is required for each client's share of the total cost. The recovery contract is the authority for CCSD to recover the costs incurred on behalf of the client.
2. supplies contract - this is a contract to cover the supply of goods or services called for in the requisition. The total of all supplies contracts must not exceed the total value authorized by the Contract Demand.

Section 9G: Electronic Data Processing Buy for Lease Program

9G.1 (1994-06-23) The Electronic Data Processing (EDP) Buy for Lease (BFL) program is designed to allow Public Works and Government Services Canada (PWGSC) to operate as the lessee to clients in preference to clients leasing through a supplier. PWGSC recovers the cost of interest and related costs from the client, therefore, certain minimum savings to the Crown are required. PWGSC sets aside, each fiscal year, $7 million in the Office Automation Allotment for this purpose.

This program covers the full range of EDP equipment.

9G.2 (1994-06-23) The program is coordinated by the Operations Support Branch, BFL Coordinator, Science, Informatics and Professional Services Sector.

9G.3 (1994-06-23) A contracting officer should consider if a procurement would benefit from the BFL program, when they receive a requisition for a lease of EDP equipment and determine from the client that there are no capital funds to purchase the goods outright.

Each requirement should meet the following criteria:

1. a proposed payback period of over 18 months;
2. a saving of at least $10,000 (based on present value), and in excess of 10 percent of the purchase price. (Both figures are to either include or exclude maintenance.)

9G.4 (1994-06-23) The equipment may be purchased for subsequent lease if:

1. sufficient funds are available in the Office Automation Allotment;
2. the client is in agreement with the purchase and is willing to enter into an agreement sufficiently long to amortize total PWGSC costs;
3. the Information Technology Management Division of the Treasury Board (TB) Administrative Policy Branch has been consulted prior to each proposed acquisition, regardless of the value, and provided with a certification from the client's senior financial officer that they do not have the required capital funds to purchase the equipment;
4. the proposal includes a commitment to transfer title to the client after the expiry of the initial lease period; and
5. when the transaction exceeds $1 million, a submission is made to TB, including a cost benefit analysis.

9G.5 (1994-06-23) Selection from a list of potential cases for the use of the BFL will generally be made by the BFL Coordinator on the basis of ranking such cases according to the probable savings (percentage-wise), until the total Office Automation Allotment is committed.

9G.6 (1994-06-23) Before entering into a lease arrangement with the client, the contracting officer must first determine, through the normal solicitation process, the efficiency of the BFL option. The approved format for determining savings is:

Present Value of Private Sector lease proposal $___ (A)
Present Value Cost to the Crown under BFL $___ (B)
Present Value Savings to the Crown $___ (A-B)

The rate to be used for this calculation is the official rate applicable to the Supply Revolving Fund for the current fiscal year.

9G.7 (1994-06-23) If the cost savings show that BFL is the most cost-effective approach, then the contracting officer will contact the BFL Coordinator to determine if the funds are available and to commit the necessary amount. Upon confirmation that the funds are committed, the contracting officer needs to obtain client verification of:

1. the term of the requirement;
2. that there are not sufficient capital funds with the client; and
3. an Agreement in Principle that procurement through BFL is acceptable.

The contracting officer must forward one copy of the above, along with one copy of:

4. the client request;
5. the cost benefit analysis;
6. the future use of the equipment; and
7. any recommendations;

to the TB Administrative Policy Branch, for approval, and the EDP BFL Coordinator, for information.

9G.8 (1994-06-23) If TB agrees, and the procurement exceeds $1 million the contracting officer will prepare a TB submission. After all approvals are granted, the contracting officer, in conjunction with Legal Services, will draw up a Memorandum of Undertaking (MOU) (see sample at Exhibit A), which will include:

1. name of client;
2. name of supplier;
3. detailed description of equipment;
4. purchase price;
5. interest rate;
6. term;
7. payment schedule;
8. client requisition number;
9. client consignee code;
10. client fund code;
11. client accounting office code;
12. client financial code;
13. client signature.

The contracting officer must forward the MOU to the BFL Coordinator.

9G.9 (1994-06-23) The contracting officer will raise a requisition for the EDP equipment, with requisition and financial code from BFL Coordinator. The BFL Coordinator will arrange commitment of funds.

9G.10 (1994-06-23) The contracting officer will identify themselves as the invoice, will proceed with the usual approvals, and will provide the BFL Coordinator with copies of the cost benefit analysis, the MOU, the contract and any subsequent amendments. After product acceptance by the client, the contracting officer will also provide the BFL Coordinator with a copy.

Exhibit A (1994-12-16)

PWGSC Buy for Lease Program
Memorandum of Undertaking

1. Parties

The conditions outlined in the following constitute the basis of an agreement between the Department of Public Works and Government Services Canada hereinafter referred to as the 'Purchaser', and______________________________ , hereinafter referred to as the 'User', for the provision of the following equipment: _______________________________________

2. Equipment Description

The Purchaser will purchase, from ________________________ , hereinafter referred to as the 'Supplier', the equipment as outlined in the Description hereto attached and referred to as Appendix 'A‘.

3. Payment

In consideration for the use of said equipment and in accordance with TB738546 approved 2 March 1976 and TB753201 approved 2 February 1978, the purchaser is to recover full costs through periodic charges, including the purchase costs, the full interest costs, administration costs, and other related expenses through the series of payments outlined below:

Purchase Price -

Interest Rate -

Term -

Date Payment Principal Interest Balance

In addition, a charge of ______________ will be made to cover the Purchaser's administration costs.

The interest rate and charges shown are those currently in effect for the Supply Revolving Fund this year.

All of the above charges, including principal and interest, are due and payable on the dates shown.

The charge for Administration Cost will be billed in accordance with normal Cost Recovery Procedures of the Purchaser.

The User is expected to follow the Payment Schedule outlined above whether or not the Purchaser formally bills the User for each individual payment.

All bills and relevant Interdepartmental Settlement Advice (ISA) must display the following details:

• Customer Requisition No:
• Consignee Code:
• Customer Fund Code:
• Accounting Office Code:
• Financial Code:

4. Acceptance

The User will provide written certification to the Purchaser of the former's acceptance of the equipment in accordance with the terms and conditions of the contract between the Purchaser and the Supplier. Expressed and/or implied warranties in the agreement between the purchaser and the Supplier shall be treated as if they were mutually in the name of both parties to this agreement.

5. Maintenance

The payments required by this agreement do not include the cost of maintenance. The User agrees to provide any repair and maintenance necessary and to retain the equipment in proper operating condition throughout the period of this agreement.

6. Damages

The User will ensure that environmental conditions suitable for the operation of the equipment are maintained throughout the duration of this agreement. After acceptability has been certified by the User, the User is obligated to make all payments for the equipment as set out herein regardless of any damage or loss which may later occur to the equipment.

The Purchaser will assist the User in any claim which might be made against the Supplier under warranty or otherwise. The Purchaser assumes no obligation to repair any damage or replace any equipment destroyed. In the event of loss or damage, the Purchaser will make no claims on the User beyond payment of the full costs set forth herein.

7. Title

Title to this equipment will remain with the Purchaser until all payments are made under the terms of the MOU. Upon discharge of the User's financial obligations under the terms of this agreement, title to the equipment will be automatically transferred to the User.

8. Asset Control

If, during warranty or maintenance satisfaction, an exchange of equipment is made, the User is expected to notify the Purchaser of what has taken place.

Until such a time as title to the equipment is transferred to the User, the User must provide to the Purchaser, in the last month of each fiscal year, a list of the equipment held under this agreement and their physical location.

9. Termination

This agreement shall not be terminated except by the consent of both parties. Termination charges shall not exceed the balance of those payments outlined in paragraph 3.

Section 9H: Contracting for Temporary Help Services

9H.1 (2001-12-10) Temporary help services are traditionally used against vacancies during staffing action, when a public servant is absent for a short period, or when there is a temporary work load increase for which insufficient staff is available.

9H.2 (2001-12-10) Public Works and Government Services Canada (PWGSC) issues regional master standing offers to provide for qualified personnel for temporary assignments.

9H.3 (2001-12-10) Regional Master standing offers for temporary help services are requested and authorized by the PWGSC's regional offices.

9H.4 (2001-12-10) Contracting officers are to keep clients informed of contracting processes, procedures and definitions of categories of service with respect to temporary help services.

9H.5 (2004-12-10) There is a temporary help contracting officers' network which has been working with functional guidance from the Science and Professional Services Procurement Directorate, Services and Technology Acquisition Management Sector.

For additional information, contact the Supply Specialist for Temporary Help Services, at telephone number (819) 956-6007.

Section 9J: Supply Arrangements

9J.1 (1994-06-23) An Supply Arrangement (SA) is a method of supply where the client, under the framework of the Arrangement, may solicit bids from a pool of prescreened vendors. An SA is not a contract and neither party is legally bound as a result of the signing of this document alone. The intent of the SA is to establish a framework to permit the expeditious processing of legally binding contracts for goods or services. SAs include a minimum set of terms and conditions which would apply to each contract and they are issued by Public Works and Government Services Canada (PWGSC).

9J.2 (2005-12-16) Solicitations made under an SA, depending on the circumstances, may be subject to all North American Free Trade Agreement (NAFTA), World Trade Organization Agreement on Government Procurement (WTO-AGP) and the Agreement on Internal Trade (AIT) procedures (see Chapter 4.012). An SA solicitation meeting the NAFTA and/or WTO-AGP requirements would be considered Selective Tendering not involving the use of a permanent list of qualified suppliers (see 5.050 (b)) and a solicitation meeting the AIT requirement would be considered as using a source list (see Article 506, AIT). For procurements covered under NAFTA, WTO-AGP and AIT, the following procedures should be modified, if necessary, to take into account the obligations of the Agreements.

9J.3 (1994-06-23) An SA should be considered if:

1. a commodity is procured on a regular basis (goods or services); and
2. a Standing Offer is not suitable, due to variables in resulting call-ups (e.g. varying methods/bases of payment, statement of work or commodity cannot be adequately defined in advance); and
3. the commodity or service value is best expressed as a ceiling price; and
4. clients can negotiate price reductions from the ceiling price; and
5. it is most efficient for PWGSC to operate as the provider of the framework, and not as the contractual authority.

9J.4 (1996-06-03) Prior to establishing an SA, the contracting officer will prepare and issue a competitive Request for a Supply Arrangement (RFSA), which will allow for a suitable pool of suppliers under the stated evaluation criteria. Industrial Security requirements (i.e. Personnel, Physical and Information Technology security) should be identified at this time, when any or all of these security aspects will be applicable to all clients of the SA.

9J.5 (1994-06-23) After the RFSA evaluation has been completed, the qualified suppliers' ceiling prices, and contact information are collected, and published along with a complete guide for the use of the SA by the clients.

9J.6 (1994-06-23) The client's use of the SA is monitored by the contracting officer, and the suppliers are subject to an audit.

9J.7 (2000-05-12) Supply Arrangement Solicitation/Contract for Non-consulting Services, form PWGSC-TPSGC 9200-11, is designed to form both the Request for Proposal and the contract for the client.

The contracting limits for services (including the Goods and Services Tax, and/or the Harmonized Sales Tax) are contained in the Treasury Board (TB) Contracts Directive:

The contracting limits for goods are outlined in the TB Contracts Directive but are subject to delegation from the Minister of PWGSC.

These are the maximum limits, which may be limited under the SA, by PWGSC.

9J.8 (1994-06-23) Clients are free to negotiate a lower price or rate (from the stated ceiling prices), according to the work required.

9J.9 (1994-06-03) Clients are responsible for determining and arranging for security requirements, at all times when these requirements differ from the SA.

9J.10 (2000-05-12) A legal contract does not exist between Canada and the supplier until the form PWGSC-TPSGC 9200-11 has been fully completed as an offer by the supplier and accepted by the client.

Section 9K: Ontario Labour Legislation

9K.1 (1996-12-02) On November 5, 1992, Ontario Bill 40 received royal assent. Included in the legislation were certain amendments to the Employment Standards Act intended to protect the jobs and the level of benefits of workers who work primarily at one specific site to provide building cleaning, food and security services.

Although the federal government is not bound by provincial legislation, contractors bidding on federal government work are subject to the Act and amendments thereto. The Crown, as building owner, has an information handling role under this legislation.

Treasury Board Contracting Policy requires departmental contracting authorities to observe the intent of the Ontario Labour Legislation, and, in practice, to follow its provisions.

9K.2 (2002-12-13) In November 1995, Ontario Bill 7 received royal assent. It amended Ontario Bill 40 by repealing Part XIII.2, 'Successor Employers', of the Employment Standards Act (ESA) and adding section 13.1 'Successor Employers'. The Ontario Regulation (138/96) sets out successor employer exemptions from compliance with Part XIV of the ESA (termination and severance provisions) and the type of information that building owners or managers may obtain from incumbent contractors and provide to prospective bidders or successor employers. The Employment Standards Act, R.S.O. 1990, c. E14, was repealed and replaced by the Employment Standards Act, 2000 (ESA 2000) and the Ontario Regulation 138/96 has been superseded by Ontario Regulation 287/01. ESA 2000 came into force on September 4, 2001, and governs employment standards entitlements arising out on or after that date.

9K.3 (2002-12-13) ESA 2000Section 77(1) applies to contracts for building cleaning, food and security services which are provided at a specific premises directly or indirectly by or to a building owner manager in the province of Ontario, and which commenced on or after 31 October 1995. Not included are construction, maintenance, such as snow removal, lawn care, window cleaning, and the production of goods, other than goods related to the provision of food services at the premises for consumption on the premises.

Expiry of Existing Contract

9K.4 (2002-12-13) Contracting authorities must obtain from the outgoing contractor the following information as set out in Ontario Regulation 287/01 for each employee providing services at the premises, preferably four (4) months prior to the completion date of the existing contract:

1. the name, address, and telephone number;
2. the classification, wage rate, benefits, average weekly hours and initial hire date (including employment with previous employers under Bill 40);
3. the number of weeks worked in the preceding 26 weeks (or a longer period if services were temporarily discontinued or an employee was on pregnancy or parental leave);
4. a statement indicating whether the employees were not primarily employed at the premises during the preceding 13 weeks or during an employee's most recent 13 weeks of active employment.

The contracting authority may also request a copy of any applicable union agreement.

9K.5 (2002-12-13) That information should be obtained by filling out form PWGSC-TPSGC 5116, Information on Incumbent Employees. Copies of the form could be attached to the letter proposed for obtaining information from the existing contractor. Where contracts contain a provision for obtaining information, a suggested letter is provided for this purpose at Exhibit A. If contracts do not contain a provision for obtaining this information, the suggested letter at Exhibit B should be used.

Bid Solicitation

9K.7 (2000-05-12) Except for information on the name, address and telephone number of each employee, information received from the outgoing contractor should be conveyed in the bid solicitation document to potential bidders. The solicitation clause K9015T of the Standard Acquisition Clauses and Conditions (SACC) Manual shall be included in applicable documents. It informs bidders of the requirements of Bill 7 and the purpose to which information required under Bill 7 should be used.

Contract Award

9K.8 (1994-12-16) Names, addresses and telephone numbers of an outgoing contractor's employees shall be given to the new contractor only.

9K.9 (2002-02-12) Contracting authorities should ensure that contract terms include special conditions which require the contractor to keep its employees' records up to date and, upon request, submit them to the contracting authority. Contract clause K9015C of the SACC Manual informs the contractor of its obligations to keep employee information up to date and to make it available upon request by the Crown.

9K.11 (2004-12-10) It is important to remember that there is no onus on the Department to mediate between the outgoing and incoming contractors in the event that the information provided is incomplete or erroneous. If there are any difficulties, enquiries should be referred to the local Ontario Ministry of Labour offices for resolution.

9K.12 (1994-12-16) Performance problems require prompt follow up action and reporting, preferably in writing, to the contractor. Written reports should identify the location, date, situation or circumstances surrounding the performance difficulties. The contractor is responsible for remedying the situation or improving the performance as required.

Exhibit A: Proposed letter when requesting information from an outgoing contractor where there IS a clause in the contract to that effect.

(2002-12-13)

Dear _______________ (Name of Contractor),

As you are aware, contract ___________ (Serial No.) for the provision of ____________ (Type of building-related services) will expire on ____________ (Date).

Pursuant to the clause included in the above-noted contract, you are hereby required to provide, within seven (7) days of the date of this letter, the following information with respect to your current employees at these premises and providing the services performed under this contract:

1. each employee's name, residential address and telephone number;
2. his or her job classification or job description;
3. the wage rate actually paid to the employee;
4. a description of the benefits, if any, provided to the employee including the cost of each benefit and the benefit period to which the cost relates;
5. the number of hours that the employee works in a regular non-overtime work week; or if hours vary from week to week, the number of the employee's non-overtime hours for each week that the employee worked during the 13 weeks preceding the date of the request for information;
6. the date on which the employer hired the employee;
7. any period of employment attributed to the employer under Section 10 of the Act;
8. the number of weeks that the employee worked at the premises during the 26 weeks preceding the date on which the request was made for the information (the 26 week period shall be calculated without including any period during which the provision of services at the premises was temporarily discontinued, or during which the employee was on a leave under Part XIV of the Act);
9. a statement indicating whether the employee
   1. is actively employed in providing services at the premises but whose job duties were not primarily performed at the premises during the 13 weeks immediately preceding the date on which the request was made for the information;
   2. is employed, but not actively employed, in providing services at the premises but whose job duties were not primarily performed at the premises during his or her most recent 13 weeks of active employment.

In addition to the above information, you are required to provide an up-to-date copy of the collective agreement regarding the employees at the premises, or, if no collective agreement exits for these premises, a copy of the union certificate regarding these employees or, if no union certificate was issued, a copy of any pending union application, if it exists.

Between the date you provide the above information and the completion date of this contract, you shall also provide the Contracting Authority with updated information immediately as any changes to said information occur.

All information shall be provided on the prescribed form of which copies are attached herewith. With the exception of (a), this information will be provided to prospective bidders for a future contract for these services relating to the premises. The name, address and telephone number of each employee shall only be given to the successful bidder.

Signed by: ________________________
Contracting Authority

Exhibit B: Proposed letter when requesting information from an outgoing contractor where there is NO clause in the contract to that effect.

(2002-12-13)

Dear _______________ (Name of Contractor),

As you are aware, contract ___________ (Serial No.) for the provision of ____________ (Type of building-related services) will expire on ____________ (Date).

Pursuant to the laws of the province of Ontario, you are hereby requested to provide the following information with respect to your current employees at these premises and providing the services performed under this contract:

1. each employee's name, residential address and telephone number;
2. his or her job classification or job description;
3. the wage rate actually paid to the employee;
4. a description of the benefits, if any, provided to the employee including the cost of each benefit and the benefit period to which the cost relates;
5. the number of hours that the employee works in a regular non-overtime work week, or if hours vary from week to week, the number of the employee's non-overtime hours for each week that the employee worked during the 13 weeks preceding the date of the request for information;
6. the date on which the employer hired the employee;
7. any period of employment attributed to the employer under Section 10 of the Act;
8. the number of weeks that the employee worked at the premises during the 26 weeks preceding the date on which the request was made for the information (the 26 week period shall be calculated without including any period during which the provision of services at the premises was temporarily discontinued, or during which the employee was on a leave under Part XIV of the Act);
9. a statement indicating whether the employee
   1. is actively employed in providing services at the premises but whose job duties were not primarily performed at the premises during the 13 weeks immediately preceding the date on which the request was made for the information;
   2. is employed, but not actively employed, in providing services at the premises but whose job duties were not primarily performed at the premises during his or her most recent 13 weeks of active employment.

In addition to the above information, you are required to provide an up-to-date copy of the collective agreement regarding the employees at the premises, or, if no collective agreement exits for these premises, a copy of the union certificate regarding these employees or, if no union certificate was issued, a copy of any pending union application, if it exists.

With the exception of (a), this information will be provided to prospective bidders for a future contract for these services relating to the premises. The name, address and telephone number of each employee shall only be given to the successful bidder.

Your reply is requested no later than _____________ (Date).

Signed by: ________________________
Contracting Authority

Section 9L: Set-aside Program for Aboriginal Business - Conducting Set-aside Procurements

9L.010 (1997-03-31) In accordance with the Procurement Strategy for Aboriginal Business (PSAB) and the Set-Aside Program for Aboriginal Business (SPAB) announced on March 27, 1996, requirements designated by client departments as set aside will be restricted to qualified Aboriginal businesses. (See 5.066)

Decision to Set Aside

9L.020 (1997-03-31) The decision to set aside a procurement is the responsibility of the client department. Public Works and Government Services Canada (PWGSC) will not unilaterally declare a procurement set aside. However, when a requisition is received which is not designated as a set-aside, and the recipients of the goods, services or construction to be contracted are for an Aboriginal population, the contracting officer should contact the client department and draw their attention to the potential omission. When the client indicates that the procurement is not to be set aside, the file should be annotated accordingly, and the procurement may then proceed.

9L.030 (1997-03-31) Contracting officers should assist client departments in meeting their performance objectives under the program, by drawing their attention to opportunities for voluntary set-asides, when qualified Aboriginal suppliers are known to exist in the marketplace.

Set-Asides and Comprehensive Land Claims Agreements

9L.040 (2004-12-10) Requirements subject to the SPAB may also be subject to the requirements of Comprehensive Land Claims Agreements (CLCA). To the extent that the application of a set-aside for Aboriginal business does not interfere with Canada's obligations under the CLCA, then both the CLCA and SPAB procedures may be applied, but where the two are in conflict, the requirements of the CLCA take precedence. In many instances the requirement of the CLCA is limited to providing notification to the claimant group of the upcoming procurement. In other instances, the requirement under the CLCA may be more extensive. Contracting officers should consult with Acquisition Policy and Process Directorate (819-956-4744), regarding procurement obligations under CLCAs. (See 4.002)

Set-Asides and Trade Agreements

9L.050 (2005-12-16) Procurements set aside for Aboriginal business are not subject to the provisions of either the North American Free Trade Agreement (NAFTA), Annex 1001.2b, Article 1.(d) or the World Trade Organization Agreement on Government Procurement (WTO-AGP), Appendix I, article 1.(d), or the Agreement on Internal Trade (AIT), Article 1802.

9L.060 (1997-03-31) When a requirement has been carried out under a set-aside and the results have not produced a responsive Aboriginal business, the requirement must be re-tendered, either as a set-aside once again (after the necessary adjustments to the bid have been made), or under the procedures for the applicable trade agreement(s), taking into account the relevant thresholds, etc., which apply to the requirement, in the absence of a set-aside. This will also apply when the contract will not be awarded to an Aboriginal business because the contract award would conflict with sound contracting principles - value for money, prudence and probity, etc. (See 9L.120)

Set-Asides and Canadian Content

9L.070 (1997-03-31) Set-aside procurements and the Canadian Content Policy may be applied simultaneously.

9L.080 (1997-03-31) In applying the Canadian Content Policy under a set aside procurement, it must be recognized that there are two levels of certification. The first level of certification will be to qualify the bidder(s) as eligible for consideration, i.e. bidders must provide a certification that they are an Aboriginal business.

9L.090 (1997-03-31) Having established that the procurement will be conducted as a set-aside, contracting officers must then apply the Canadian Content Policy, in the same manner as any other procurement, in the context of the supplier community which is eligible to respond: the Aboriginal business community. Contracting officers must determine, on the basis of their knowledge of this community, whether there are sufficient eligible firms to carry out the procurement as Solely Limited (three or more Aboriginal firms exist which are able to provide Canadian goods or services), Conditionally Limited (there may be three or more Aboriginal suppliers of Canadian goods or services), or Open (there is an insufficient number of Aboriginal businesses able to provide Canadian goods or services; the procurement is open to all Aboriginal businesses regardless of the origin of the good and services supplied). (See 5.070)

9L.100 (1997-03-31) Bids for set aside procurements which include the Canadian Content provision must be reviewed initially to determine that the bidder has provided the necessary certificate that they are an Aboriginal business. Bids meeting this basic certification are then assessed according to the stated Canadian Content criteria.

Subcontracting Plans

9L.110 (2005-12-16) In support of the PSAB, departments may designate that a proportion of subcontracts on projects be reserved for Aboriginal business, or that bidders are to be encouraged through the use of incentives - e.g. additional evaluation points to engage Aboriginal businesses as subcontractors. The inclusion of Aboriginal businesses as subcontractors as an evaluation criterion must be clearly identified in the bid solicitation. This is not permitted for procurements subject to either NAFTA (Article 1006) or WTO-AGP (Article XVI). (See 9L.050.)

Sound Contracting Principles

9L.120 (1997-03-31) Fundamental to all SPAB procurements is the need to adhere to sound contracting principles. Contracting officers must always be cognizant of the principles of best value, prudence, probity, and operational requirements, in planning their procurement strategy for set aside requirements.

Notification to DINA

9L.130 (1999-06-21) Upon receipt and acceptance of a requisition for a set aside procurement, contracting officers are to inform the Department of Indian and Northern Affairs (DINA), Access to Federal Procurement Directorate.

9L.140 (2004-05-14) Notification to DINA is to be sent prior to the release of the solicitation to:

Director
Access to Federal Procurement Directorate
Department of Indian and Northern Affairs
Fax: (819) 994-0445

and must include the following information:

• Estimated Dollar Value:
• Description of Goods/Services/Construction:
• Solicitation Number;
• Closing Date; and
• Buyer (name, and phone/fax numbers).

In instances of single-source procurements, the notice to DINA must also include the name and address of the proposed contractor.

9L.150 (1997-03-31) After the contract has been awarded, contracting officers must advise DINA, Access to Federal Procurement Directorate, of the name of the contractor, the contract number, and the total estimated value of the contract, within fifteen (15) working days.

Sourcing of Requirements under the Set-Aside Program for Aboriginal Business

9L.160 (1997-03-31) Requirements subject to the set-aside program may be sourced competitively or non-competitively according to current established government sourcing policies (see 5.002). Bids may be solicited from Aboriginal business in accordance with Public Works and Government Services Canada (PWGSC) policies and procedures.

9L.170 (2002-12-13) PWGSC's Vendor Information Management (VIM) system is being modified, and SELECT has been created, to allow for identification of firms that have self-declared as being Aboriginal. As data is collected from supplier registrations and contract awards, the information in VIM and SELECT will be useful in identifying potential Aboriginal businesses for sourcing purposes, and establishing source lists, regardless of commodity (goods, services, or construction) which would be subject to rotation regimes such as Automated Vendor Rotation System (AVRS) or SELECT. (See 5.117)

9L.190 (1997-03-31) Businesses placed on 'Aboriginal' source lists must also be placed on non-Aboriginal source lists.

9L.200 (1999-06-21) Contracting officers may also access other sources - e.g. DINA Internet database (currently being developed). Until the service has been established, DINA may be contacted directly via the Access to Federal Procurement Directorate - fax: 819-994-0445, for information on Aboriginal suppliers), to identify potential Aboriginal businesses which may be invited to bid. When such sources have been used, consideration should be given to inclusion of Supplier Registration forms with the bid set, to allow new bidders to register with PWGSC. Regardless of information contained within PWGSC or other vendor information databases, all bidders competing in a set-aside, must certify at the time of bidding, that they meet the definition of an Aboriginal business. Inclusion of the firm on an 'Aboriginal' source list is not sufficient. (See 9L.220)

9L.210 (1997-09-15) When bids are solicited via the Government Electronic Tendering Service (GETS), notices (NPP or ACAN) must contain the following statement, prominently positioned - i.e. one of the first statements in the notice:

• 'This procurement has been set aside under the federal government's Set-Aside Program for Aboriginal Business (SPAB). In order to be considered, firms must certify that they qualify as an Aboriginal business as defined in the SPAB and that they will comply with all requirements of the SPAB.'(NPP);

  or

• 'This procurement has been set aside under the federal government's Set-Aside Program for Aboriginal Business (SPAB). Only Aboriginal businesses as defined in the SPAB are eligible to challenge the proposed procurement strategy to award the contract to the named Aboriginal business.' (ACAN)

Agreement Type codes have been added to the GETS to allow identification of solicitations as subject to the set-aside program. Contracting officers must ensure that the appropriate Agreement Type has been selected for set-asides. Similar modifications have been made to the Automated Buyer Environment (ABE) to allow recording of set-aside procurements at the applicable stages in the procurement cycle.

Legal Entity

9L.220 (1997-03-31) The description of a business as an Aboriginal business does not affect the fact that in order to create an enforceable contract with Canada, the contract must be signed between Canada and a legal entity which has the capacity to contract. In the event any uncertainty exists concerning the legal status of an Aboriginal business, contracting officers must consult with legal counsel to ensure that the proposed contractor is capable of signing an enforceable agreement.

Certification by Bidders

9L.230 (1997-03-31) There will be no permanent list of pre-certified Aboriginal businesses. For each procurement under the SPAB, bidders will be required to provide, with their bid, a certificate stating that they meet the definition of an Aboriginal business, according to the definition provided, on the date that the bid was submitted, and an undertaking that the firm will continue to meet this definition throughout the life of the contract.

9L.240 (2000-12-01) To enable bidders to complete the certificate each bid set must include a copy of the Requirements for the Set-Aside Program for Aboriginal Business document (Annex 9.1) which sets out the definitions of an Aboriginal business and an Aboriginal person also, and which contains the certificate which bidders must sign and submit with their bid, in order to be considered eligible for set-aside contracts.

9L.250 (2004-05-14) Solicitation documents are to include clause K9025T for procurements subject to set-asides. Resultant contracts awarded to firms on the basis of their being Aboriginal must include clause K9025C. Clause K9026D must also be used where the general conditions do not include an Entire Agreement provision - e.g. general conditions 9601, section 36.

9L.260 (1997-03-31) Bidders who fail to complete and return the certification with their bids shall be considered non-responsive. A clear statement of this fact must appear in the bid solicitation document.

9L.270 (1999-06-21) It is not the responsibility of the contracting authority to verify the bidder's certification. In instances where the contracting authority questions the validity of a certificate, the particulars are to be referred to DINA, Access to Federal Procurement Directorate, for audit by Consulting and Audit Canada (CAC). (See 9L.300)

9L.280 (1999-06-21) Bidders' certifications include provision for remedies should either the certificate be shown to be invalid prior to award of a contract, or the contractor fail to continue to meet the definition of an Aboriginal business. Remedies range from declaration of the bidder non-responsive to termination of the contract or taking the work out of the hands of the contractor. Remedies may also include suspension of the supplier's bidding privileges as an Aboriginal business, or other corrective measures provided for in the contract or under the Vendor Performance Policy. Contracting officers should consult with assigned Sector or Region legal counsel, and DINA, Access to Federal Procurement Directorate, in determining the appropriate action to be taken.

9L.290 (1997-03-31) When the contract has been awarded, and it is found that the contractor has not maintained their status as an Aboriginal business during the life of the contract, contracting officers must consider whether the provisions of the Vendor Performance Policy apply in addition to, or instead of, the specific provisions set out in the certificate of eligibility.

Audits of Bidders Certification

9L.300 (2004-05-14) Bidders are required to certify in their bids that they are an Aboriginal business, as defined in the PSAB (see Annex 9.1). The certification includes an undertaking that the business will continue to meet the criteria which define it as Aboriginal throughout the performance of the contract. Bidders certifications that they are Aboriginal are subject to audit, both prior to and subsequent to contract award.

9L.305 (2004-05-14) Consulting and Audit Canada (CAC) is the auditing authority under Memorandum of Understanding with DINA and will receive its instructions from DINA. CAC will contact the contracting officer for further information when an audit is required.

9L.310 (2004-05-14) Pre-award auditing is mandatory for requirements valued at, or in excess of, $2M. To ensure that the mandatory requirement for pre-auditing is met, it is essential that the contracting authority properly notify DINA of such requirements, as per 9L.140 above, and that the two best-assessed bids be submitted to DINA as per 9L.340 below. The contracting officer must not award contracts of $2M or more until DINA has confirmed eligibility of the proposed contractor.

9L.320 (2004-05-14) Pre-award audits of bidders' certifications will be conducted on a random basis for requirements under $2M. DINA will advise the contracting officer whether a requirement is subject to pre-award audit no later than the date of bid closing (see 9L.130). Audits of bidders' certifications are expected to require approximately ten (10) working days to be completed. When timing of contract award is an issue, this should be indicated in the notification to DINA, so that it may determine whether the auditing process can be expedited or the procurement excluded from the random selection.

9L.330 (2004-05-14) Pre-award audits may be requested either by the requisitioning authority, the contracting officer, or DINA, whenever there is a doubt regarding the validity of bidders' certifications, regardless of the total estimated expenditure of the procurement. (See 9L.270.)

9L.340 (1999-06-21) When DINA has advised that the requirement will be subject to a pre-award audit, the evaluation of bids will continue up to the point that the two 'best assessed' bids have been identified. This information is to be provided to DINA, minus any pricing information, who will request CAC to undertake the pre-award audit of the bidders' certification. Upon receipt of the results of the audit, DINA will advise the contracting officer. If the audit confirms the validity of the bidders' certifications, award of the contract may proceed. If the audit determines that one or more of the certificates are invalid, the subject bidder(s) whose certifications have been declared invalid, must be declared non-responsive, and the next-ranked bidder becomes the 'recommended bidder'. If the audit reveals that both certifications are invalid, the next-ranked bidder's certification must be referred to DINA for audit until either a bid with a valid certificate is obtained, or no bidders remain. In the event that all bidders are eliminated on the basis of invalid certifications, the requirement must be re-tendered, either as a set-aside once again, or not set-aside, after consultation with the client department. Whether, the next-ranked bidder should be awarded the contract or the requirement re-tendered, is a decision that must be made on a case by case basis, in keeping with sound contracting principles.

9L.350 (1999-06-21) After the contract has been awarded, the contractor's certification is subject to audit to confirm their status as an Aboriginal business (see 9L.130) during the life of the contract. Audits following contract award will normally be done on a random basis, however where contracting officers believe it to be necessary, audit of the contractor's continued status as an Aboriginal business may be requested of DINA.

9L.360 (1999-06-21) Contracting officers should note that the bidders' certification regarding their status as an Aboriginal business contains provisions for remedies should it be determined that either the certificate is invalid, or that the contractor has not completed their undertaking to continue to qualify as an Aboriginal business. It may be necessary to implement certain of the remedies, upon advice that an audit has revealed the invalidity of the certificate, or a failed undertaking. Contracting officers should consult with assigned Sector or Region counsel, and DINA, Access to Federal Procurement Directorate, in determining the appropriate action to be taken.

Bid Challenge

9L.370 (2004-05-14) Bid challenges should be dealt with according to established internal supplier complaint response procedures for procurements not subject to trade agreements.

Set-Aside Procedures Checklist

1. Has the client indicated that the requirement has been set aside. If no, process requirement according to standard procurement policies and procedures. If yes, see below.
2. If requirement is subject to CLCA, determine extent to which CLCA and set-aside do not conflict. In cases of conflict, CLCA takes precedence (See 9L.040).
3. Has the client indicated a requirement for sub-contracting to Aboriginal business? (See 9L.120)
4. Notify DINA, Access to Federal Procurement of receipt of set aside requirement. (See 9L.130)
5. Bid solicitation document includes Requirements for the Set-Aside Program for Aboriginal Business document and clause K9025T (and K9026D - Entire Agreement, if applicable). (See 9L.250)
6. Source requirement according to established policies and procedures - source list, GETS, etc. (See 9L.170)
7. NPP/ACAN (GETS) contains a clear statement that requirement has been set aside and that only Aboriginal businesses will be eligible. (See 9L.210)
8. Has DINA advised that the requirement is/is not subject to pre-award audit of certifications before bid closing? (See 9L.340)
9. Have all bidders provided signed certificate of eligibility with their bids? (See 9L.260)
10. Evaluation of bids according to established criteria.
11. Advice to DINA of 2 'best-assessed' responsive bidders (without financial information) if requirement subject to pre-award audit. (See 9L.340)
12. Has DINA advised re: results of pre-award audit of certificates of eligibility? (See 9L.340)
13. Award contract in accordance with established evaluation criteria and result of pre-award audit, if applicable.
14. Advise DINA of contract award within fifteen (15) working days. (See 9L.150)
15. Contract management including advice to DINA regarding changes in contractor's status as an Aboriginal business, or requests to DINA to verify continued status (post-award audit). (See 9L.360)

Section 9M: Land Claims Set-aside Policy

Introduction

9M.010 (2005-12-16) The Land Claims Set-aside Policy establishes procedures for setting aside procurements covered by the North American Free Trade Agreement (NAFTA) and the World Trade Organization Agreement on Government Procurement (WTO-AGP) that are subject to Comprehensive Land Claims Agreements, National Park Agreements, or Department of National Defence (DND) Co-operation Agreements.

Policy

9M.020 (1999-06-21) A set-aside policy has been developed for each Comprehensive Land Claims Agreement, National Park Agreement, and DND Co-operation Agreement (referred to herein collectively as land claims agreements) based on the TBS Contracting Policy Notice 1997-8. The extent of preferences to the claimant group is restricted to the Federal government's obligations under the applicable land claims agreement(s). This policy does not apply when a procurement has been set aside under the Set-Aside Program for Aboriginal Business - a procurement can not be set aside more than once.

Determine Coverage

9M.030 (2005-12-16) Determine whether a procurement is covered by both a land claims agreement and NAFTA and/or the WTO-AGP. (See 4.002, 4.009, 4.010 and 4.011 respectively.)

If a procurement is subject to NAFTA and/or the WTO-AGP, and one or more of the land claims agreements, the portion for delivery within the Comprehensive Land Claims Settlement Areas (CLCSA) should be procured separately from the portion for delivery outside of the CLCSA, where this is feasible.

The portion of the procurement for delivery outside of the CLCSA will continue to be procured according to the provisions in the NAFTA and/or the WTO-AGP.

The procurement (or portion of the procurement) for delivery within the CLCSA is to be set aside from NAFTA and the WTO-AGP. The provision for 'set-asides for small and minority businesses' is found in NAFTA, Annex 1001.2b, Article 1.(d) and the WTO-AGP, Appendix I, Article 1.(d). In order to effect that set-aside, specific references from the applicable land claims agreements must be inserted into the NPP and the bid solicitation document. This procurement will be known as a 'Land Claims Set-Aside' or 'LCSA'.

Determine Obligations

9M.040 (1999-06-21) The Treasury Board Contracting Policy Notice 1997-8 identifies Canada's contracting obligations under each land claims agreement. The Chart, entitled 'Summary of Benefits from Treasury Board Contracting Policy Notice 1997-8', was derived from this Notice. Using this Chart, determine which provisions in the applicable land claims agreements apply. Ensure that only the relevant provisions are selected. For example, provisions related to silviculture would not apply to a procurement for food services.

Notice of Proposed Procurement

9M.050 (2005-12-10) Insert the following information (Standard Acquisition Clauses and Conditions (SACC) Manual clause A9110T) at the beginning of the text box in the NPP for the procurement which is being set aside.

• 'This procurement is set aside from ________ (Insert as applicable: the North American Free Trade Agreement, Annex 1001.2b, Article 1.(d); the World Trade Organization Agreement on Government Procurement, Appendix I, article 1.(d) and/or the Agreement on Internal Trade, Article 1802.

Insert the following information at the end of the text box in the NPP, indicating the applicable section, corresponding land claims agreement, and clause numbers from the Treasury Board Contracting Policy Notice 1997-8. Refer to the Chart for this information. Do not include the text of the provisions in the NPP.

• 'The benefits that apply to this procurement are contained in: ... .'

For example, a procurement that is subject to the Inuvialuit Final Agreement might read as follows:

• 'The benefits that apply to this procurement are contained in: Section 2, the Inuvialuit Final Agreement, clauses 16(8), (b), (c).'

Bid Solicitation Document

9M.060 (2005-12-16) Insert the following information (SACC Manual clause A9110T ) at the beginning of the bid solicitation document.

• 'This procurement is set aside from _________(Insert as applicable: the North American Free Trade Agreement, Annex 1001.2b, Article 1.(d); the World Trade Organization Agreement on Government Procurement, Appendix I, article 1.(d) and/or the Agreement on Internal Trade, Article 1802.

Insert the applicable SACC clause(s) at the end of the bid solicitation document, but before any annexes or appendices. Refer to the Chart for the list of SACC clauses.

Delivery Clauses

9M.070 (1999-06-21) Special clauses have been developed for use in solicitations and contracts or standing offers which involve or could involve deliveries to locations inside land claims settlement areas. These clauses, W0001T, W0002D and W0003D, are in the SACC Manual. The Remarks section of each clause details its use.

Coding

9M.080 (2005-12-16) Procurements to which NAFTA and/or the WTO-AGP are applied must be coded accordingly; procurements which were set-aside under this Land Claims Set-Aside Policy must be coded as LCSA and identified as a 'set-asides for small and minority businesses' derogation.

When a procurement has been divided and the same supplier is successful on both solicitations, separate contractual documents must be issued in order to satisfy system coding requirements for the respective agreement types.

Enquiries

9M.090 (2005-12-16) Questions about this policy may be directed to Acquisition Strategy and Relations Directorate, (819) 956-6501.

Summary of Benefits from Treasury Board Contracting Policy Notice 1997-8
Table Headings

Legend

Notification - This is a list of the general notification provisions contained in the individual land claims agreements. It is required to notify all land claimant groups of potential contracts in their settlement area/region. When a procurement is subject to a land claims agreement include in the NPP and bid solicitation the mandatory notification provisions listed under 'Bid Solicitation'. Provisions in the 'As applicable' column are to be included where appropriate. In addition, include the notification provisions listed under 'Creation of a List' when an NPP is being used to advertise the existence of a list which will be used to notify suppliers of actual requirements.

General Evaluation - This is a list of provisions that allow for evaluation preferences. It is necessary to include these provisions only when the procurement plan and bid solicitation document include the evaluation preferences set out in the applicable land claim agreements.

Entity, Area & Commodity Specific - This is a list of the provisions that require the federal government to give preference, as defined in the individual land claims agreements, for a procurement by a specific entity, for a specific commodity or for delivery within a specific area. Include these clauses when the procurement involves an area or commodity that is subject to special provisions.

Mandatory - This designates a mandatory provision within a land claims agreement - i.e. a provision that the Federal government is obligated to carry out. In the case of the column 'Entity, Area and Commodity Specific Provisions', include these clauses when the procurement involves the specific entity or is for the specified area or commodity. For example, provisions related to silviculture would only be included if the procurement is for silviculture.

As Applicable - This designates a provision which may not be appropriate for every land claims agreement procurement. Only include these provisions if they also form part of the bid solicitation, eg. evaluation.

List of Comprehensive Land Claims Agreements, National Park Co-management Agreements, and DND Co-operation Agreements listed in Treasury Board Contracting Policy Notice 1997-8

• Section 1: James Bay and Northern Quebec Agreement
• Section 2: Inuvialuit Final Agreement
• Section 3: Gwich‘in Comprehensive Land Claim Agreement
• Section 4: Inuit of Nunavut Land Claims Agreement
• Section 5: Umbrella Final Agreement, Council for Yukon Indians
  • Section 5.1 First Nation of Nacho Nyak Dun Final Agreement
  • Section 5.2 Champagne and Aishihik First Nations Final Agreement
  • Section 5.3 Teslin Tlingit Council Final Agreement
  • Section 5.4 Vuntut Gwichin First Nation Final Agreement
  • Section 5.5 Selkirk First Nation Final Agreement
  • Section 5.6 Little Salmon/Carmacks First Nation Final Agreement
  • Section 5.7 Tr‘ondëk Hwëch‘in Final Agreement
• Section 6: Sahtu Dene and Metis Comprehensive Land Claim Agreement
• Section 7: Agreement for the Establishment of a National Park on Banks Island
• Section 8: Tuktut Nogait National Park Co-management Agreement
• Section 9: Co-operation Agreement Between the Inuvialuit Regional Corporation and the Department of National Defence Concerning the Operation and Maintenance of the North Warning System
• Section 10: Co-operation Agreement Between the Inuvialuit Regional Corporation and the Department of National Defence Concerning the Restoration and Clean-up of DEW Sites within the Inuvialuit Settlement Region

Summary of Benefits from Treasury Board Contracting Policy Notice 1997-8

Include the relevant SACC clause(s) (identified in the chart above) in the bid solicitation and insert the corresponding clause numbers from the James Bay and Northern Quebec Agreement (listed below) in the Notice of Proposed Procurement.

SACC W0011T is comprised of clauses: 4.3; 28.10.3(b) ii, iii; 29.0.31(b) ii, iii

SACC W0012T is comprised of clauses: 8.1; 8.2; 8.3; 8.4; 8.5; 8.6..

SACC W0013T is comprised of clauses: 28.10.3(b)i, ii, iiii: 29.0.31(b)i, ii, iii.

SACC W0014T is comprised of clauses: 7.1, a), b), c).

Include the relevant SACC clause(s) (identified in the chart above) in the bid solicitation and insert the corresponding clause numbers from the Inuvialuit Final Agreement (listed below) in the Notice of Proposed Procurement.

SACC W0021T is comprised of clauses: 16(8), (b), (c).

SACC W0022T is comprised of clauses: 6.00, (a), (b), (c).

Include the relevant SACC clause(s) (identified in the chart above) in the bid solicitation and insert the corresponding clause numbers from the Gwich'in Comprehensive Land Claim Agreement (listed below) in the Notice of Proposed Procurement.

SACC W0031T is comprised of clause: 17.2.1 in App. C.

SACC W0032T is comprised of clause: 17.2.5 in App. C.

SACC W0033T is comprised of clause: 25.1.10.

SACC W0034T is comprised of clauses: 9.7.1; 9.7.2; 9.7.5 (a),(b) in App. C.

SACC W0035T is comprised of clauses: 11.6.1, (a), (b); 11.6.2, (a), (b) in App. C.

SACC W0036T is comprised of clauses: 13.6.2; 13.6.3; 13.6.6 in App. C.

Include the relevant SACC clause(s) (identified in the chart above) in the bid solicitation and insert the corresponding clause numbers from the Inuit of Nunavut Land Claims Agreement (listed below) in the Notice of Proposed Procurement.

SACC W0041T is comprised of clause: 24.5.1; 24.5.2; 24.5.3.

SACC W0042T is comprised of clause: 24.7.1.

SACC W0043T is comprised of clause: 24.6.1,(a),(b),(c).

SACC W0044T is comprised of clause: 8.4.8,(a),(b); 8.4.9.

SACC W0045T is comprised of clause: 33.6.1,(a),(b); 33.6.2.

Include the relevant SACC clause(s) (identified in the chart above) in the bid solicitation and insert the corresponding clause numbers from the First Nation of Nacho Nyak Dun Final Agreement (listed below) in the Notice of Proposed Procurement.

SACC W0051T is comprised of clauses: 22.5.1.

SACC W0052T is comprised of clauses: 22.5.4: 22.5.8.

SACC W0053T is comprised of clauses: 15.7.1; 15.7.2.

SACC W0061T is comprised of clauses: 13.12.1.1; 13.12.1.2; 13.12.1.5,(a), (b).

SACC W0062T is comprised of clauses: 15.7.1.1; 15.7.1.2

SACC W0063T is comprised of clauses: 17.14.2.2; 17.14.2.3; 17.14.2.6.

Include the relevant SACC clause(s) (identified in the chart above) in the bid solicitation and insert the corresponding clause numbers from the Champagne and Aishihik First Nations Final Agreement (listed below) in the Notice of Proposed Procurement.

SACC W0051T is comprised of clauses: 22.5.1.

SACC W0052T is comprised of clauses: 22.5.4: 22.5.8.

SACC W0053T is comprised of clauses: 15.7.1; 15.7.2.

SACC W0071T is comprised of clauses: 9.3; 9.3.1; 9.3.2; 9.3.3.

SACC W0072T is comprised of clauses: 9.4; 9.4.1; 9.4.2; 9.4.3.

SACC W0073T is comprised of clauses: 13.12.1.1; 13.12.1.2; 13.12.1.5, (a), (b).

SACC W0074T is comprised of clauses: 15.7.1.1; 15.7.1.2

SACC W0075T is comprised of clauses: 17.14.2.2; 17.14.2.3; 17.14.2.6.

Include the relevant SACC clause(s) (identified in the chart above) in the bid solicitation and insert the corresponding clause numbers from the Teslin Tlingit Council Final Agreement (listed below) in the Notice of Proposed Procurement.

SACC W0051T is comprised of clauses: 22.5.1.

SACC W0052T is comprised of clauses: 22.5.4: 22.5.8.

SACC W0053T is comprised of clauses: 15.7.1; 15.7.2.

SACC W0081T is comprised of clauses: 13.12.1.1; 13.12.1.2.; 13.12.1.5, (a),(b).

SACC W0082T is comprised of clauses: 15.7.1.1; 15.7.1.2.

SACC W0083T is comprised of clauses: 17.14.2.2; 17.14.2.3; 17.14.2.6.

Include the relevant SACC clause(s) (identified in the chart above) in the bid solicitation and insert the corresponding clause numbers from the Vuntut Gwich'in First Nation Final Agreement (listed below) in the Notice of Proposed Procurement.

SACC W0051T is comprised of clauses: 22.5.1.

SACC W0052T is comprised of clauses: 22.5.4: 22.5.8.

SACC W0053T is comprised of clauses: 15.7.1; 15.7.2.

SACC W0091T is comprised of clauses: 9.6; 9.7; 9.7.1; 9.7.2; 9.7.3; 9.7.4.

SACC W0092T is comprised of clauses: 13.12.1.1; 13.12.1.3; 13.12.1.6,(a), (b).

SACC W0093T is comprised of clauses: 15.7.1.1; 15.7.1.2.

SACC W0094T is comprised of clauses: 17.14.2.2; 17.14.2.3; 17.14.2.6; 17.14.2.7.

SACC W0095T is comprised of clauses: 9.8; 9.8.1; 9.8.2.

Include the relevant SACC clause(s) (identified in the chart above) in the bid solicitation and insert the corresponding clause numbers from the Selkirk First Nation Final Agreement (listed below) in the Notice of Proposed Procurement.

SACC W0051T is comprised of clauses: 22.5.1.

SACC W0052T is comprised of clauses: 22.5.4: 22.5.8.

SACC W0101T is comprised of clauses:13.12.1.1; 13.12.1.2; 13.12.1.3;13.12.1.7,(a), (b).

SACC W0102T is comprised of clause: 5.1.

SACC W0103T is comprised of clauses: 15.7.1.1; 15.7.1.2.

SACC W0104T is comprised of clauses: 17.14.2.2; 17.14.2.3; 17.14.2.4; 17.14.2.8.

Include the relevant SACC clause(s) (identified in the chart above) in the bid solicitation and insert the corresponding clause numbers from the Little Salmon/Carmacks First Nation Final Agreement (listed below) in the Notice of Proposed Procurement.

SACC W0051T is comprised of clauses: 22.5.1.

SACC W0052T is comprised of clauses: 22.5.4: 22.5.8.

SACC W0111T is comprised of clauses: clauses:13.12.1.1; 13.12.1.2; 13.12.1.3;13.12.1.7,(a), (b).

SACC W0112T is comprised of clauses:15.7.1.1; 15.7.1.2.

SACC W0113T is comprised of clauses: 17.14.2.2; 17.14.2.3; 17.14.2.4; 17.14.2.8.

Include the relevant SACC clause(s) (identified in the chart above) in the bid solicitation and insert the corresponding clause numbers from theTr'ondëk Hwëch'in Final Agreement (listed below) in the Notice of Proposed Procurement.

SACC W0051T is comprised of clauses: 22.5.1.

SACC W0052T is comprised of clauses: 22.5.4: 22.5.8.

SACC W0171T is comprised of clauses: clauses:13.12.1.1; 13.12.1.2; 13.12.1.3;13.12.1.7,(a), (b).

SACC W0172T is comprised of clauses:15.7.1.1; 15.7.1.2.

SACC W0173T is comprised of clauses: 17.14.2.2; 17.14.2.3; 17.14.2.4; 17.14.2.8.

Include the relevant SACC clause(s) (identified in the chart above) in the bid solicitation and insert the corresponding clause numbers from the Sahtu Dene and Metis Comprehensive Land Claim Agreement (listed below) in the Notice of Proposed Procurement.

SACC W0121T is comprised of clauses:12.2.1, (a), (b).

SACC W0122T is comprised of clauses: 26.2.8.

Include the relevant SACC clause(s) (identified in the chart above) in the bid solicitation and insert the corresponding clause numbers from the Agreement for the Establishment of a National Park on Banks Island (listed below) in the Notice of Proposed Procurement.

SACC W0131T is comprised of clauses: 8.02; 8.03, (a), (b), (c), (d).

SACC W0132T is comprised of clauses: 8.05,(a),(b),(c).

SACC W0133T is comprised of clauses:8.04; 8.06,(a),(b),(c),(d),(e). 8.07, (a),(b),(c).

Include the relevant SACC clause(s) (identified in the chart above) in the bid solicitation and insert the corresponding clause numbers from the Tuktut Nogait National Park Co-management Agreement (listed below) in the Notice of Proposed Procurement.

SACC W0141T is comprised of clauses: 14.2; 14.3, (i), (ii), (iii), (iv), (v).

SACC W0142T is comprised of clauses: 14.5, (i), (ii), (iii).

SACC W0143T is comprised of clauses: 14.4; 14.6, (i), (ii), (iii), (iv), (v); 14.7, (i), (ii), (iii).

Include the relevant SACC clause(s) (identified in the chart above) in the bid solicitation and insert the corresponding clause numbers from the Co-operation Agreement Between the Inuvialuit Regional Corporation and the Department of National Defence Concerning the Operation and Maintenance of the North Warning System (listed below) in the Notice of Proposed Procurement.

SACC W0151T is comprised of clause: 4.2, (a), (c).

SACC W0152T is comprised of clauses: 4.0; 4.1.

SACC W0153T is comprised of clauses:4.3; 4.3.1.

SACC W0154T is comprised of clauses: 4.3; 4.3.2.

SACC W0155T is comprised of clauses: 4.3; 4.3.3.

SACC W0156T is comprised of clauses:4.3; 4.3.4.

Include the relevant SACC clause(s) (identified in the chart above) in the bid solicitation and insert the corresponding clause numbers from the Co-operation Agreement Between the Inuvialuit Regional Corporation and the Department of National Defence Concerning the Restoration and Clean-up of DEW Sites within the Inuvialuit Settlement Region (listed below) in the Notice of Proposed Procurement.

SACC W0161T is comprised of clause: 6.1, (b)

SACC W0162T is comprised of clauses: 4.1 (a); 5.1; 5.2; 6.1,(c).

SACC W0163T is comprised of clause: 6.2, (a).

SACC W0164T is comprised of clause: 6.2, (b).

SACC W0165T is comprised of clause: 6.2, (c).

SACC W0166T is comprised of clause: 6.2, (d).

SACC W0167T is comprised of clause: 6.2, (e).

SACC W0168T is comprised of clause: 6.3, (a).

SACC W0169T is comprised of clause: 6.4,(a).

1. Provisions in the Council of Yukon First Nations Final Agreement also apply to procurements subject to the First Nation of First Nation of Nacho Nyak Dun Final Agreement.
2. Provisions in the Council of Yukon First Nations Final Agreement also apply to procurements subject to the Champagne and Aishihik First Nations Final Agreement.
3. Provisions in the Council of Yukon First Nations Final Agreement also apply to procurements subject to the Teslin Tlingit Council Final Agreement.
4. Provisions in the Council of Yukon First Nations Final Agreement also apply to procurements subject to the Vuntut Gwich'in First Nation Final Agreement.
5. Provisions in the Council of Yukon First Nations Final Agreement also apply to procurements subject to the Selkirk First Nation Final Agreement.
6. Provisions in the Council of Yukon First Nations Final Agreement also apply to procurements subject to the Little Salmon/Carmacks First Nation Final Agreement.
7. Provisions in the Council of Yukon First Nations Final Agreement also apply to procurements subject to the Tr'ondëk Hwëch'in Final Agreement.

Annex 9.1: Requirements for the Set-aside Program for Aboriginal Business

(2004-05-14)

Who is eligible?

An Aboriginal business, which can be:

• a band as defined by the Indian Act
• a sole proprietorship
• a limited company
• a co-operative
• a partnership
• a not-for-profit organization

in which Aboriginal persons have at least 51 percent ownership and control,

OR

A joint venture consisting of two or more Aboriginal businesses or an Aboriginal business and a non-Aboriginal business(es), provided that the Aboriginal business(es) has at least 51 percent ownership and control of the joint venture.

When an Aboriginal business has six or more full-time employees at the date of submitting the bid, at least thirty-three percent of them must be Aboriginal persons, and this ratio must be maintained throughout the duration of the contract.

The bidder must certify in its submitted bid that it is an Aboriginal business or a joint venture constituted as described above.

Are there any other requirements attached to bidders in the Set-Aside Program for Aboriginal Business? - Yes.

• In respect of a contract, (goods, service or construction), on which a bidder is making a proposal which involves subcontracting, the bidder must certify in its bid that at least thirty-three percent of the value of the work performed under the contract will be performed by an Aboriginal business. Value of the work performed is considered to be the total value of the contract less any materials directly purchased by the contractor for the performance of the contract. Therefore, the bidder must notify and, where applicable, bind the subcontractor in writing with respect to the requirements that the Aboriginal Set-Aside Program (the Program) may impose on the subcontractor or subcontractors.
• The bidder's contract with a subcontractor must also, where applicable, include a provision in which the subcontractor agrees to provide the bidder with information, substantiating its compliance with the Program, and authorize the bidder to have an audit performed by Canada to examine the subcontractor's records to verify the information provided. Failure by the bidder to exact or enforce such a provision will be deemed to be a breach of contract and subject to the civil consequences referred to in this document.
• As part of its bid, the bidder must complete the Certification of Requirements for the Set-Aside Program for Aboriginal Business (certification) stating that it:
  1. meets the requirements for the Program and will continue to do so throughout the duration of the contract;
  2. will, upon request, provide evidence that it meets the eligibility criteria;
  3. is willing to be audited regarding the certification; and
  4. acknowledges that if it is found NOT to meet the eligibility criteria, the bidder shall be subject to one or more of the civil consequences set out in the certification and the contract.

How must the business prove that it meets the requirements?

It is not necessary to provide evidence of eligibility at the time the bid is submitted. However, the business should have evidence of eligibility ready in case it is audited.

The civil consequences of making an untrue statement in the bid documents, or of not complying with the requirements of the Program or failing to produce satisfactory evidence to Canada regarding the requirements of the Program, may include: forfeiture of the bid deposit; retention of the holdback; disqualification of the business from participating in future contracts under the program; and/or termination of the contract. In the event that the contract is terminated because of an untrue statement or non-compliance with the requirements of the Program, Canada may engage another contractor to complete the performance of the contract and any additional costs incurred by Canada shall, upon the request of Canada, be borne by the business.

What evidence may be required from the business?

Ownership and control

Evidence of ownership and control of an Aboriginal business or joint venture may include incorporation documents, shareholders' or members' register; partnership agreements; joint venture agreements; business name registration; banking arrangements; governance documents; minutes of meetings of Board of Directors and Management Committees; or other legal documents.

Ownership of an Aboriginal business refers to "beneficial ownership" i.e. who is the real owner of the business. Canada may consider a variety of factors to satisfy whether Aboriginal persons have true and effective control of an Aboriginal business. (See Appendix A for a list of the factors which may be considered by Canada.)

Employment and employees

Where an Aboriginal business has six or more full-time employees at the date of submitting the certification and is required by Canada to substantiate that at least thirty-three percent of the full-time employees are Aboriginal, the business must, upon request by Canada, immediately provide a completed Owner/Employee Certification form for each full-time employee who is Aboriginal.

Evidence as to whether an employee is or is not full-time and evidence as to the number of full-time employees may include payroll records, written offers for employment, and remittance and payroll information maintained for Canada Revenue Agency purposes as well as information related to pension and other benefit plans.

A full-time employee, for the purpose of this program, is one who is on the payroll, is entitled to all benefits that other full-time employees of the business receive, such as pension plan, vacation pay and sick leave allowance, and works at least 30 hours a week. It is the number of full-time employees on the payroll of the business at the date of bid submission that determines the ratio of Aboriginal to total employees of the business for the purpose of establishing eligibility under the Program.

Owners who are Aboriginal and full-time employees who are Aboriginal must be ready to provide evidence in support of such status. The Owner/Employee Certification to be completed by each owner and full-time employee who is Aboriginal shall state that the person meets the eligibility criteria and that the information supplied is true and complete. This certification shall provide the person's consent to the verification of the information submitted.

Subcontracts

Evidence of the proportion of work done by subcontractors may include contracts between the contractor and subcontractors, invoices, and paid cheques.

Evidence that a subcontractor is an Aboriginal business (where this is required to meet the minimum Aboriginal content of the contract) is the same as evidence that a prime contractor is an Aboriginal business.

Who is an Aboriginal Person for Purposes of the Set-Aside Program for Aboriginal Business?

• An Aboriginal person is an Indian, Metis or Inuit who is ordinarily resident in Canada.

Evidence of being an Aboriginal person will consist of such proof as:

• Indian registration in Canada
• membership in an affiliate of the Metis National Council or the Congress of Aboriginal Peoples, or other recognized Aboriginal organizations in Canada
• acceptance as an Aboriginal person by an established Aboriginal community in Canada
• enrolment or entitlement to be enrolled pursuant to a comprehensive land claim agreement
• membership or entitlement to membership in a group with an accepted comprehensive claim

Evidence of being resident in Canada includes a provincial or territorial driver's licence, a lease or other appropriate document.

For further information on the Set-Aside Program for Aboriginal Business, contact the Access to Federal Procurement Directorate in the Department of Indian and Northern Affairs at (819) 997-8383 or (819) 997-8746 or fax (819) 994-0445.

Certification Requirements for the Set-Aside Program for Aboriginal Business

A bidder who submits, under this program, a bid or proposal in response to a solicitation must complete and submit this certification. Failure to submit this certification will result in the proposal's being found non-compliant.

1.

1. I, _________________________________________ (Name of duly authorized representative of business) hereby certify that ______________________________ (Name of business) meets, and shall continue to meet throughout the duration of the contract, the requirements for this program as set out in the attached document entitled "Requirements for the Set-Aside Program for Aboriginal Business", which document I have read and understand.
2. The aforementioned business agrees to ensure that any subcontractor it engages with respect to the contract shall, if required, satisfy the requirements set out in "Requirements for the Set-Aside Program for Aboriginal Business."
3. The aforementioned business agrees to provide to Canada, immediately upon request, information to substantiate a subcontractor's compliance with this program

Please Check the Applicable Boxes in 2 and 3 below

2.

1. The aforementioned business is an Aboriginal business which is a sole proprietorship, band, limited company, co-operative, partnership or not-for-profit organization, [ ]

   or

2. The aforementioned business is a joint venture between two or more Aboriginal businesses or an Aboriginal business and a non-Aboriginal business. [ ]

3. The Aboriginal business or businesses have:

1. fewer than six full-time employees [ ]

   or

2. six or more full-time employees [ ]

4. The aforementioned business agrees to immediately furnish to Canada, such evidence as may be requested by Canada from time to time, corroborating this certification. Such evidence shall be open to audit during normal business hours by a representative of Canada, who may make copies and take extracts from the evidence. The aforementioned business agrees to provide all facilities for audits and to furnish information requested by Canada with respect to the certification.

5. It is understood that the civil consequences of making an untrue statement in the bid documents, or of not complying with the requirements of the Program or failing to produce satisfactory evidence to Canada regarding the requirements of the Program, may include: forfeiture of the bid deposit; retention of the holdback; disqualification of the business from participating in future contracts under the Program; and/or termination of the contract. In the event that the contract is terminated because of an untrue statement or non-compliance with the requirements of the Program, Canada may engage another contractor to complete the performance of the contract and any additional costs incurred by Canada shall, upon the request of Canada, be borne by the aforementioned business.

Date:_________________

Signature:_________________
Title (Duly authorized representative of business)

Place:_________________

Title:_________________
For:_________________
Name of Business

Appendix A

The Set-Aside Program for Aboriginal Business

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

• Capital Stock and Equity Accounts, i.e., preferred stock, convertible securities, classes of common stock, warrants, options
• Dividend policy and payments
• Existence of Stock Options to employees
• Different treatment of Equity transactions for Corporations, Partnerships, Joint Ventures, Community organizations, Cooperatives, etc.
• Examination of Charter Documents, i.e., corporate charter, partnership agreement, financial structure
• Concentration of ownership or managerial control in partners, stockholders, officers trustees and directors based definition of duties
• Principal occupations and employer of the officers and directors to determine who they represent, i.e. banker, vested ownerships
• Minutes of directors meetings and stockholders meetings for significant decisions that affect operations and direction
• Executive and employee compensation records for indication of level of efforts associated with position
• Nature of the business in comparison with the type of contract being negotiated
• Cash management practices, i.e., payment of dividends - preferred dividends in arrears
• Tax returns to identify ownership and business history
• Goodwill contribution/contributed asset valuation to examine and ascertain the Fair Market value of non cash capital contributions
• Contracts with owners, officers and employees to be fair and reasonable
• Stockholder authority, i.e. appointments of officers, directors, auditors
• Trust agreements made between parties to influence ownership and control decisions
• Partnership - allocation and distribution of net income, i.e., provision for salaries, interest on capital and distribution share ratios
• Litigation proceedings over ownership
• Transfer pricing from non-Aboriginal joint venturer
• Payment of management or administrative fees
• Guarantees made by the Aboriginal business
• Collateral agreements

Owner/Employee Certification Form

Set-aside Program for Aboriginal Business

1. I, ________________Name_________________________, am an owner and/or full-time employee of___________Name of business_____________, and an Aboriginal person,as described in the document "Requirements for the Set-Aside Program for Aboriginal Business".
2. I certify that the above statement is true and consent to its verification upon the request of Canada.

___________________
Date

___________________________
Signature of owner and/or employee

___________________
Place