Vol. 151, No. 10 — May 17, 2017
Registration
SOR/2017-82 May 5, 2017
FINANCIAL ADMINISTRATION ACT
Regulations Amending the Government Contracts Regulations
P.C. 2017-465 May 5, 2017
His Excellency the Governor General in Council, on the recommendation of the President of the Treasury Board, pursuant to subsection 42(1) (see footnote a) of the Financial Administration Act (see footnote b), makes the annexed Regulations Amending the Government Contracts Regulations.
Regulations Amending the Government Contracts Regulations
Amendments
1 (1) Paragraph 18(1)(b) of the French version of the Government Contracts Regulations (see footnote 1) is replaced by the following:
- b) tous les comptes et registres relatifs à des versements d’honoraires ou d’autre rémunération effectués par l’adjudicataire pour la sollicitation, la négociation ou l’obtention du marché sont assujettis aux dispositions du marché sur la comptabilisation et la vérification;
(2) Paragraph 18(1)(c) of the Regulations is replaced by the following:
- (c) the contractor declares that the contractor has not been convicted of an offence under any of the provisions referred to in subsection 750(3) of the Criminal Code or that, if the contractor has been convicted of any of those offences, it is one for which
- (i) a pardon was granted under the Criminal Records Act — as it read immediately before the coming into force of section 109 of the Safe Streets and Communities Act — that has not been revoked or ceased to have effect,
- (ii) a record suspension has been ordered under the Criminal Records Act and that has not been revoked or ceased to have effect,
- (iii) an order of restoration was made under subsection 750(5) of the Criminal Code that restores the contractor’s capacity to enter into the contract or to receive any benefit under the contract as the case may be, or
- (iv) the conviction was set aside by a competent authority;
(3) Paragraph 18(1)(e) of the French version of the Regulations is replaced by the following:
- e) l’adjudicataire qui fournit une fausse déclaration en contravention des alinéas a) ou c) ou qui contrevient à l’une des conditions prévues aux alinéas b) et d) contrevient au marché et accepte, en plus des autres recours qui peuvent être exercés contre lui, de rembourser immédiatement tout paiement anticipé et consent à ce que l’autorité contractante puisse mettre fin au marché.
(4) Paragraph 18(2)(b) of the Regulations is replaced by the following:
- (b) the bidder declares that the bidder has not been convicted of an offence under any of the provisions referred to in subsection 750(3) of the Criminal Code or that, if the bidder has been convicted of any of those offences, it is one for which
- (i) a pardon was granted under the Criminal Records Act — as it read immediately before the coming into force of section 109 of the Safe Streets and Communities Act — that has not been revoked or ceased to have effect,
- (ii) a record suspension has been ordered under the Criminal Records Act and that has not been revoked or ceased to have effect,
- (iii) an order of restoration was made under subsection 750(5) of the Criminal Code that restores the bidder’s capacity to enter into the contract or to receive any benefit under the contract as the case may be, or
- (iv) the conviction was set aside by a competent authority.
Coming into Force
2 These Regulations come into force on the day on which they are registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
Issues
The Standing Joint Committee for the Scrutiny of Regulations (SJCSR) has identified minor issues with the Government Contracts Regulations (the Regulations), following their amendment in 2011, including extraneous words and a grammatical error in the French version of the Regulations, an obsolete reference to pardons, and a potential for misinterpretation due to language in the Regulatory Impact Analysis Statement that accompanied the 2011 amendments.
Background
In carrying out its programs and providing services to Canadians, the Government of Canada is one of the largest purchasers of goods and services in the country. The Regulations, made under the Financial Administration Act, set out conditions of contract entry (e.g. to require bids), security and deemed terms. Deemed terms are terms that form part of a contract even when they are not written into any contractual documents.
The Regulations were amended in 2011 to broaden the definition of a “contracting authority” and introduced a number of deemed terms in contracts. These deemed terms included that suppliers consented to the public disclosure of basic information, a declaration that they had not been convicted of certain criminal offences, and had not paid a contingency fee to a consultant lobbyist.
Clarifying the 2011 Regulatory Impact Analysis Statement (see footnote 2)
In their review of the 2011 regulatory amendments, the SJCSR identified a potential for misinterpretation due to language in the accompanying Regulatory Impact Analysis Statement.
Notice is hereby given that two changes are required with respect to the Regulatory Impact Analysis Statement in the above-mentioned Regulations published on page 1932 of the Canada Gazette, Part II, Vol. 145, No. 21, dated October 12, 2011.
The first sentence of the second paragraph on page 1937 should read:
- A contractor’s non-compliance with a deemed term requires that the contractor return any advance payment and gives a contracting authority the power to terminate the contract.
The second sentence of the last paragraph on page 1939 should read:
- In addition, should someone be found to have made a false declaration, the contractor must return any advance payment and the contracting authority is authorized to terminate the contract.
The original wording of the above sentences could have been misinterpreted to mean that a contracting authority has some discretion in requiring a contractor to return an advance payment. The revisions reverse the sequence of the advance payment and the termination issues to make it clear that there is no such discretion. The revisions do not result in any consequential amendments to the Regulations.
Objectives
The objective of the Regulations Amending the Government Contracts Regulations is to address issues identified by the SJCSR.
Description
Correcting wording in the French version of the Regulations
The amendments remove extraneous words from paragraphs 18(1)(b), 18(1)(c) and 18(2)(b) of the Regulations. The French version of these paragraphs includes the words “as applicable” (“le cas échéant”), which do not add to the meaning of the deemed terms.
The amendments also address a grammatical error in the French version of paragraph 18(1)(e), by removing a word (“qu’”), and a term error by replacing the term “acompte” with “paiement anticipé.”
Updating the exception for pardons
The existing deemed terms in the Regulations include that a bidder or a contractor “has not been convicted of an offence, other than for an offence for which a pardon has been granted, under section 121, 124 or 418 of the Criminal Code.” The SJCSR noted in 2012 that the Safe Streets and Communities Act amended the Criminal Records Act to order a record suspension rather than to grant a pardon. The amendments update the exception to reflect this legislative amendment.
The amendments expand this exception to include instances where a contractor has had their capacity to contract restored by the Governor in Council under subsection 750(5) of the Criminal Code, and to include convictions that have been set aside.
The amendments also change two deemed terms to refer to subsection 750(3) of the Criminal Code instead of sections 121, 124, and 418 to include frauds against the Government that remove a person’s capacity to contract under the Criminal Code.
“One-for-One” Rule
The “One-for-One” Rule does not apply to the Regulations as there is no change in the administrative cost to business.
Small business lens
The small business lens does not apply to the Regulations as there is no cost to small business.
Consultation
Given that the amendments are housekeeping in nature, no consultations were conducted.
Rationale
The amendments address the issues identified by the SJCSR and improve the clarity of the Regulations by removing some extraneous terms, correcting a grammatical error, and adding a reference to record suspensions. The “Background” section above clarifies the Regulatory Impact Analysis Statement that accompanied the 2011 amendments to the Regulations, reducing the potential for misinterpretation identified by the SJCSR. The amendments are housekeeping in nature, and have no impact on stakeholders.
Contact
Glenn Richardson
Senior Policy Analyst
Acquired Services and Assets Sector
Office of the Comptroller General
Treasury Board of Canada Secretariat
James Michael Flaherty Building
90 Elgin Street
Ottawa, Ontario
K1P 5E9
Telephone: 613-818-4414
Email: Glenn.Richardson@tbs-sct.gc.ca
- Footnote a
S.C. 2006, c. 9, ss. 312 and 313 - Footnote b
R.S., c. F-11 - Footnote 1
SOR/87-402 - Footnote 2
Regulations Amending the Government Contracts Regulations, SOR/2011-197.