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ARCHIVED - Guidelines for Ministers' Offices (2005-09) - Archived
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Part 7 Contracting
7.1 Introduction
Ministers and Ministers of State operate in two distinct environments, each with separate budgets (sources of funds) and a legislative and policy frameworks. Specifically, ministerial offices are subject to Financial Administration Act, regulations and Treasury Board policies.
This differs from the requirement for Members of Parliament offices and budgets that are subject to special provisions under the Parliament Act.
This includes adherence to ensure that the Government Contracts Regulations are respected, and that the Financial Administration Act, section 32 (making a commitment that the funds to pay for the work to be undertaken is 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) requirements are met.
Ministers' and Ministers' of State staff are encouraged to consult their departmental procurement specialists when conducting procurements. The complete policy is available on the Treasury Board's web-site at:http://www.tbs-sct.gc.ca/pubs_pol/dcgpubs/Contracting/contractingpol-eng.asp.
7.1.1 Treasury Board Contracting Policy
The Treasury Board Contracting Policy is based on ensuring not only that the services and products needed to deliver an office's responsibilities are delivered, but also demonstrate fairness, openness and the achievement of best value in the spending of taxpayer's money. Key legislative, regulations 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:
- the need is one of pressing emergency in which delay would be injurious to the public interest;
- the estimated contract expenditure is below $25,000;
- the nature of the work is such that it would not be in the public interest to solicit bids; or
- only one supplier can do the work.
As well, the government is signatory to three trade agreements that affect government procurement which establish thresholds for various types of procurement:
- North American Free Trade Agreement, (NAFTA), Chapter 10;
- World Trade Organization - Agreement on Government Procurement (WTO-AGP);
- Agreement on Internal Trade (AIT) Chapter Five.
The Government Contracts Regulations are found in Appendix B of the Treasury Board Policy on Contracting. 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, the Treasury Board Contracts Directive or appropriate management approval within the department or agency.
7.2 Employer-employee relationships
Except for those contracts of employment that are exempted pursuant to section 39 of the Public Service Employment Act (PSEA), Ministers and Ministers of State 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 and Ministers of State 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 (CRA) current guidance, for example, "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 Treasury Board Contracting Policy or,
Seek legal advice from the Department of Justice 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.
7.3 Fee guidelines
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 Public Works and
Government Services Canada. 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 internet address:
http://www.tbs-sct.gc.ca/pubs_pol/dcgpubs/Contracting/contractingpol_j-eng.asp.
7.4 Former government officials
Contracts for the services of former government officials must be able to bear the closest public scrutiny. No contract for the services of a former official shall be entered into unless the individual Minister or Minister of State 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 (2003) which is available at the following internet address, http://www.parl.gc.ca/oec/en/, 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-eng.asp. Other considerations of a general nature are discussed in the Treasury Board Secretariat - Contracting Policy (section 16.8, Appendix C), which can be found at internet address: http://www.tbs-sct.gc.ca/Pubs_pol/dcgpubs/Contracting/contractingpol-eng.asp.
7.5 Temporary help services
Government policy is that employees of temporary help companies 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 and Ministers of State 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 the Department of Public Works and Government Services has entered into temporary help standing offers. Contracting authorities have the option of acquiring temporary help through a standing offer established by Public Works and Government Services Canada, 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 the Department of Public Works and Government Services.
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 poses the risk of creating Employer-Employee relationships which must be avoided as identified in section 7.2.
Additional information on Temporary Help services can be found in Appendix I of the Treasury Board Contracting Policy - Temporary Help Services (internet:
http://www.tbs-sct.gc.ca/pubs_pol/dcgpubs/Contracting/contractingpol_i-eng.asp.)
7.6 Proactive Disclosure of Contracts over $10,000
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. Posting began on October 31, 2004 for the first two fiscal quarters of 2004, and continues on a fiscal quarter basis every three months thereafter. The publication of contracts will be updated to include information on new contracts awarded.
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 on Schedules I, I.1, and II of the Financial Administration Act. Offices of Ministers and Ministers of State are subject to Financial Administration Act, regulations and Treasury Board policies.
Departments and agencies listed on Schedules I, I.1, and II of the Financial Administration Act will be required to report the data on their web-sites (even where Public Works and Government Services Canada (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 includes: vendor name, 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 website. 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. Additionally, for more information on the posting of contract information on-line, please see the Treasury Board of Canada Secretariat Web-site at www.tbs-sct.gc.ca/pd-dp.