On November 11, 2015, the Québec Government announced a Draft Regulation to amend the implementing regulations of the Act Respecting Contracting by Public Bodies with respect to supply contracts, service contracts and construction contracts. This draft regulation also provides the establishment of a new regulation, the Regulation respecting contracting by public bodies in the field of information technologies, which will provide contractual rules specific to this sector.
The proposed amendments to the concerned regulations, that is the Regulation respecting supply contracts of public bodies, the Regulation respecting service contracts of public bodies and the Regulation respecting construction contracts of public bodies, as well as the new Regulation respecting contracting by public bodies in the field of information technologies, aim, among other things, to allow the electronic transmission of tenders to public bodies through the electronic tendering system (SEAO). In cases of tenders transmitted electronically, public bodies will have to ensure the integrity of the tenders at the opening of the tenders. If the integrity of a tender cannot be established, the tenderer will be allowed to remedy the irregularity within two business days after having been notified by the public body, failing which its tender will be rejected.
The following are among the other proposed amendments:
- the addition of provisions allowing the remedy of minor irregularities in tenders within the delays provided by public bodies, such as the absence of a required document or signature for which the call for tenders does not provide for an automatic rejection of a tender, or an erasure or correction to the tendered price that is not initialed;
- provided that it is contemplated in the call for tenders, the right of the public body to refuse to consider a request for information made by a tenderer if such request is sent less than 24 hours before the tender closing date and time; and
- when the call for tenders provides for a qualitative evaluation, the right for a tenderer to request from the public body the results of the tender evaluation for each criterion used to evaluate quality and the reasons justifying the fact that the tender was not accepted. The tenderer must send its request within 30 days after the confirmation that its tender was accepted or refused, and feedback from the public body must be provided, within 30 days after the date of receipt of the tenderer’s request if the request was sent after the awarding of the contract, or within 30 days after the awarding of the contract if the request was sent before that date, as the case may be.
Moreover, other proposed amendments only concern supply contracts, including in the field of information technologies (IT):
- with respect to the evaluation of tenders and determination of the lowest price, the concept of “impact costs” is replaced by the concept of “additional costs related to the acquisition of goods”. These additional costs are the costs that would be borne by the public body during the useful life of the goods acquired, such as installation, maintenance, support and training costs that are not included in the tendered price. These costs may be considered by the public body and added, as the case may be, to the price so as to establish the total acquisition cost for the public body. The price adjustment must be based on quantifiable and measurable elements identified in the tender documents and be made after the filing of tenders according to the information contained in each tender;
- the addition of a new provision clarifying that when a call for tenders provides for compliance tests, the tests must first be carried out only in respect of the goods proposed by the tenderer who would be the successful tenderer. It is only in the event of a failure to pass the compliance tests by the first tenderer that it will be possible to carry out the tests on the goods proposed by the next tenderer. However, in the case of a delivery order contract entered into with a number of suppliers, the compliance tests will be carried out in respect of the goods proposed by all the selected tenderers; and
- delivery order contracts may allow the selected supplier to replace goods referred to in the contract by new goods, provided that the new goods comply with the technical specifications and provided further that the price does not exceed the price of the replaced goods. In cases of delivery order contracts entered into with more than one supplier, each of them may reduce the price of the goods referred to in the contract or replace them. The public body must specify in the tender documents the conditions to be met to make such changes as well as the mechanism to inform the other selected suppliers of the changes made by a competing supplier.
It is also worth mentioning that IT supply and service contracts will no longer be governed by the Regulation respecting supply contracts of public bodies and the Regulation respecting service contracts of public bodies, but rather by the new Regulation respecting contracting by public bodies in the field of information technologies. This new regulation proposes, among other things, a special competitive tendering procedure involving a competitive dialogue where the public body’s needs involve a high level of complexity, introduces in certain circumstances and on certain conditions the possibility of entering into a contract by mutual agreement for the acquisition of cloud goods and services and provides for the evaluation of suppliers and service providers in connection with IT contracts equal to or greater than $100,000.
The date of entry into force of this Draft Regulation has not yet been established. Any person who wishes to comment on the draft regulations can do so within the 45-day period following its publication.
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