Ministers operate in two distinct environments, each with separate budgets
(sources of funds) and legislative and policy frameworks. Specifically,
ministerial offices are subject to the Financial Administration Act,
its regulations, and Treasury Board policies.
This differs from the requirement for the offices and budgets of MPs, which
are subject to special provisions under the Parliament Act.
This includes ensuring that the Government Contracts Regulations are
respected and that Financial Administration Act requirements are met.
These include section 32 of the Act (making a commitment that the funds to pay
for the work to be undertaken are available), section 33 (that all the necessary
verification has taken place to ensure a payment is valid), and section 34 (that
the work was performed in accordance with the contract).
Ministers' staff are encouraged to consult their departmental procurement
specialists when making procurements. The complete text of the Contracting
Policy is available on the Treasury Board's Web site at http://www.tbs-sct.gc.ca/pubs_pol/dcgpubs/Contracting/contractingpol_e.asp.
The Contracting Policy is based not only on ensuring that the
services and products needed to deliver an office's responsibilities are
delivered, but also on demonstrating fairness, openness, and obtaining best
value in the spending of taxpayers' money. Key legislative, regulatory, and
policy provisions govern government contracting activities. Government
contracting must ensure prudence and probity, ensure the pre-eminence of
operational requirements, and when possible support long-term industrial and
regional development, as well as any other national objectives.
The Government Contracts Regulations require the solicitation of
bids except where:
(a) the need is one of pressing emergency in which delay would be injurious
to the public interest;
(b) the estimated contract expenditure is below $25,000;
(c) the nature of the work is such that it would not be in the public
interest to solicit bids; or
(d) only one supplier can do the work.
As well, the government is signatory to three trade agreements that affect
government procurement and these establish thresholds for various types of
procurement:
(a) the North American Free Trade Agreement (NAFTA), Chapter Ten;
(b) the World Trade Organization Agreement on Government Procurement
(WTO-AGP); and
(c) the Agreement on Internal Trade (AIT), Chapter Five.
The Government Contracts Regulations are found in Appendix B of the Contracting
Policy. References and links to the trade agreements are provided
throughout the Policy. In addition to outlining key policy aspects of tendering,
the Policy also sets limits on a department's authority to contract without
first seeking Treasury Board approval.
Contracting authorities must not split contracts or contract amendments in
order to avoid obtaining either the approval required by statute and the Contracting
Policy or appropriate management approval within the department or agency.
Except for those contracts of employment that are exempted pursuant to
section 128 of the Public Service Employment Act, ministers shall not
enter into contracts for the services of individuals when the terms of the
contract or the actual work situation would result in an employer-employee
relationship. Before entering into a contract, ministers should seek the advice
of their departmental legal advisor and procurement specialist to ensure that
there is no potential employer-employee relationship in the contract. For
guidance in assessing an employer-employee relationship:
- consult Canada Revenue Agency's publications, e.g. "Employee or
Self-Employed," publication number RC4110, or visit http://www.cra-arc.gc.ca/E/pub/tg/rc4110/README.html;
- refer to sections 16.2 and 16.3 of the Contracting Policy; or
- seek legal advice from the Department of Justice Canada where it is not
feasible for officials to determine whether a contract is a contract for
services or a contract of employment in situations where employment status
is not easily identifiable.
There are no specific fee guidelines for contracts, which can be established
through a variety of mechanisms. Information can be obtained from departmental
specialists or PWGSC. When there is no competition, the onus is on the
contractor to prove that any fees charged to the government are comparable or
similar to those charged to or obtained from the private sector for comparable
or similar work. Contracts may also contain standard terms and conditions
identifying an audit provision. Appendix J of the Treasury Board Contracting
Policy-Selection process and establishment of fees for consulting and
professional services-can be found at http://www.tbs-sct.gc.ca/pubs_pol/dcgpubs/Contracting/contractingpol_j_e.asp.
Contracts for the services of former government officials must be able to
stand up to the closest public scrutiny. No contract for the services of a
former official shall be entered into unless the individual minister is
satisfied that it would be in the public interest to do so. Potential
contractors may be subject to either the Conflict of Interest and
Post-Employment Code for Public Office Holders (2006), which is
available at http://www.parl.gc.ca/oec-bce/site/pages/ethics-e.htm, or the Values
and Ethics Code for the Public Service, available at http://www.tbs-sct.gc.ca/pubs_pol/hrpubs/TB_851/vec-cve_e.asp.
Other considerations of a general nature are discussed in the Contracting
Policy (section 16.8, Appendix C), which can be found at http://www.tbs-sct.gc.ca/Pubs_pol/dcgpubs/Contracting/contractingpol_e.asp.
Government policy is that employees of temporary help agencies are to be used
only in those situations where it is not feasible to assign exempt staff,
departmental employees, or other public service employees. Temporary services
are normally engaged when there is a short-term vacancy, when an exempt staff
member or public service employee is absent for a short period, or when there is
a temporary increase in workload for which staff are not available. Ministers
must try to meet their short-term needs with existing staff or term
appointments.
When contracting for temporary help services (administrative support and
other categories), contracting authorities should give consideration to
obtaining these services directly from companies with which PWGSC has entered
into temporary help standing offers. Contracting authorities have the option of
acquiring temporary help through a standing offer issued by PWGSC or by dealing
directly by means of a separate departmental standing offer or a contract with
other suppliers. Further information on the existence of temporary help standing
offers may be obtained from PWGSC.
It should be noted that contract splitting is unacceptable and forbidden.
Separate contracts should be entered into with temporary help firms each time a
call-up is made against a standing offer for temporary help services.
Contracts for temporary help may pose the risk of creating employer-employee
relationships; these must be avoided, as stated in section 7.2.
Additional information on temporary help services can be found in Appendix I
of the Contracting Policy-Temporary Help Services (available at http://www.tbs-sct.gc.ca/pubs_pol/dcgpubs/Contracting/contractingpol_i_e.asp).
On March 23, 2004, the government announced a new policy on the mandatory
publication of contracts over $10,000, in order to enhance the role of
Parliament and increase transparency so that Canadians are better able to hold
Parliament and public-sector officials to account.
The new requirement consists of the disclosure of procurement contracts for
goods and services dating back to April 1, 2004, for federal departments and
agencies listed in schedules I, I.1, and II of the Financial Administration
Act (FAA). Ministers' offices are subject to the FAA, its regulations, and
Treasury Board policies.
Departments and agencies listed in schedules I, I.1, and II of the FAA are
required to report the data on their Web sites (even where PWGSC has issued the
contract on their behalf), within 30 days of the end of each fiscal period and
to update it every three months. The contract information reported must include
the vendor's name, the number used in the financial system, contract date,
description of work, contract period for services, delivery date of goods, and
contract value.
Please note that information that would normally be withheld under the Access
to Information Act and the Privacy Act does not appear on this Web
site. Contracts such as those relating to national security or law enforcement
are exempt from the reporting requirement.
Ministerial staff are encouraged to discuss the requirements for proactive
disclosure with departmental contracting officials. For more information on the
posting of contract information on-line, please see the Treasury Board of Canada
Secretariat's Web site at www.tbs-sct.gc.ca/pd-dp/index_e.asp.
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