Acts and Regulations

2021, c.38 - An Act to Amend the Procurement Act

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2021, c.38
An Act to Amend
the Procurement Act
Assented to December 17, 2021
Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:
1Section 1 of the Procurement Act, chapter 20 of the Acts of New Brunswick, 2012, is amended
(a) by repealing the definition “procurement” and substituting the following:
“procurement” means the process that normally leads to an agreement to purchase, rent or lease goods, services or construction services.(démarches)
(b) by repealing the definition “services” and substituting the following: 
“services” means any service, including printing, but does not include construction services.(services)
(c) in the definition “goods” by striking out “general construction contract” and substituting “contract for construction services”;
(d) in the definition “public body” by striking out “a Schedule A entity or a Schedule B entity” and substituting “a Schedule A entity, a Schedule B entity, a Schedule 1 entity or a Schedule 2 entity”;
(e) by adding the following definitions in alphabetical order:
“construction services” means services relating to the construction, repair or alteration of land or structures.(services de construction)
“Schedule 1 entity” means an entity that is prescribed by regulation as a Schedule 1 entity.(entité de l’annexe 1)
“Schedule 2 entity” means an entity that is prescribed by regulation as a Schedule 2 entity.(entité de l’annexe 2)
2The Act is amended by adding after section 2 the following: 
Procurement on behalf of a Schedule 1 entity
2.1(1)Except as otherwise provided in this Act or in the regulations, a Schedule 1 entity shall obtain its construction services through the Minister.
2.1(2)Except as otherwise provided in this Act or in the regulations, the Minister shall procure all the construction services that are required by a Schedule 1 entity.
3Section 3 of the Act is amended
(a) in subsection (1) of the French version by striking out “dispensée de l’article 2 et de suivre certaines ou toutes les règles relatives aux modes d’approvisionnement prescrites par les règlements” and substituting “dispensée de l’application de l’article 2 et de l’obligation de suivre tout ou partie des règles relatives aux modes d’approvisionnement prescrites par règlement”;
(b) by adding after subsection (1) the following: 
3(1.1)A Schedule 1 entity may apply to the Minister for a temporary exemption from compliance with section 2.1 and with some or all of the rules concerning the procurement methods prescribed by regulation.
(c) in subsection (2) by striking out “section 2” and substituting “section 2 or 2.1”;
(d) by repealing paragraph (5)(a) and substituting the following:
(a) the goods, services or construction services in respect of which the exemption is granted;
4The Act is amended by adding after section 4 the following: 
Procurement on behalf of a Schedule 2 entity
4.1On the request of a Schedule 2 entity, the Minister may enter into an agreement with the Schedule 2 entity for the purposes of procuring construction services on behalf of the Schedule 2 entity.
5Section 5 of the Act is amended by striking out “goods and services” and substituting “goods, services or construction services”.
6The heading “Démarches pour le compte d’une administration extraterritoriale” preceding section 6 of the French version of the Act is repealed and the following is substituted: 
Démarches – administration extraterritoriale
7Section 6 of the Act is amended
(a) in paragraph (a) by striking out “goods and services” and substituting “goods, services or construction services”;
(b) in paragraph (b) by striking out “goods and services” and substituting “goods, services or construction services”.
8The heading “Preferential treatment of prospective supplier” preceding section 9 of the Act is amended by striking out “of prospective supplier”.
9Section 9 of the Act is amended by striking out “supplier” and substituting “supplier or a prospective contractor”.
10The heading “PROCUREMENT BY SCHEDULE B ENTITIES” preceding section 10 of the Act is amended by striking out “SCHEDULE B ENTITIES” and substituting “SCHEDULE B ENTITIES AND SCHEDULE 2 ENTITIES”.
11The heading “Procure on its own behalf” preceding section 10 of the Act is repealed and the following is substituted: 
Schedule B entities and Schedule 2 entities procure on their own behalf
12Section 10 of the Act is repealed and the following is substituted: 
10(1)A Schedule B entity, by means of the head of the Schedule B entity or a person who is responsible for procurement on behalf of the Schedule B entity, shall procure all the goods and services that are required by the Schedule B entity and, in order to do so, may enter into agreements authorized by this Act.
10(2)A Schedule 2 entity, by means of the head of the Schedule 2 entity or a person who is responsible for procurement on behalf of the Schedule 2 entity, shall procure all the construction services that are required by the Schedule 2 entity and, in order to do so, may enter into agreements authorized by this Act.
13Subsection 11(1) of the Act is repealed and the following is substituted: 
11(1)The head of a Schedule B entity or a Schedule 2 entity or a person who is responsible for procurement on behalf of the entity may delegate any power, authority, right, duty or responsibility conferred or imposed on them under this Act to any other person.
14Section 12 of the Act is repealed and the following is substituted: 
12On the request of the Minister,
(a) a Schedule B entity may enter into an agreement with the Minister for the purposes of procuring goods and services on behalf of the Minister, and
(b) a Schedule 2 entity may enter into an agreement with the Minister for the purposes of procuring construction services on behalf of the Minister.
15The Act is amended by adding after section 13 the following: 
Procurement on behalf of another Schedule 2 entity
13.1On the request of another Schedule 2 entity, a Schedule 2 entity may enter into an agreement with the other Schedule 2 entity for the purposes of procuring construction services on behalf of the other Schedule 2 entity.
16Section 14 of the Act is repealed and the following is substituted: 
14On the request of a public body,
(a) a Schedule B entity may enter into an agreement with the public body for the purposes of procuring goods and services on behalf of the public body, and
(b) a Schedule 2 entity may enter into an agreement with the public body for the purposes of procuring construction services on behalf of the public body.
17The heading “Démarches pour le compte d’une administration extraterritoriale” preceding section 15 of the French version of the Act is repealed and the following is substituted: 
Démarches – administration extraterritoriale
18Section 15 of the Act is repealed and the following is substituted: 
15(1)A Schedule B entity may enter into an agreement with a jurisdiction for the following purposes:
(a) the Schedule B entity to procure goods and services on a joint basis on behalf of the jurisdiction; or
(b) the jurisdiction to procure goods and services on a joint basis on behalf of the Schedule B entity.
15(2)A Schedule 2 entity may enter into an agreement with a jurisdiction for the following purposes:
(a) the Schedule 2 entity to procure construction services on a joint basis on behalf of the jurisdiction; or
(b) the jurisdiction to procure construction services on a joint basis on behalf of the Schedule 2 entity.
19Section 18 of the Act is amended
(a) by repealing subsection (1) and substituting the following: 
18(1)A Schedule B entity or a Schedule 2 entity may apply to the Minister for a temporary exemption from compliance with some or all of the rules concerning the procurement methods prescribed by regulation.
(b) in subsection (2) of the French version by striking out “de certaines ou de toutes les règles relatives aux modes d’approvisionnement prescrites par les règlements” and substituting “de l’obligation de suivre tout ou partie des règles relatives aux modes d’approvisionnement prescrites par règlement”;
(c) in paragraph (5)(a) by striking out “goods or services” and substituting “goods, services or construction services”.
20The heading “Preferential treatment of prospective supplier” preceding section 19 of the Act is amended by striking out “of prospective supplier”.
21Section 19 of the Act is repealed and the following is substituted:
19Except as may be provided in the regulations,
(a) a Schedule B entity shall not give preferential treatment to a prospective supplier, and
(b) a Schedule 2 entity shall not give preferential treatment to a prospective contractor.
22Section 20 of the Act is amended by striking out “a Schedule A entity or a Schedule B entity” and substituting “a Schedule A entity, a Schedule B entity, a Schedule 1 entity or a Schedule 2 entity”.
23The heading “Demande au ministre de faire des démarches” preceding section 21 of the French version of the Act is repealed and the following is substituted: 
Demande de démarches
24Section 21 of the Act is amended by adding after subsection (2) the following:
21(3)When a Schedule 1 entity, a Schedule 2 entity, a public body or a jurisdiction requests that the Minister procure construction services on its behalf, the request shall be made in a form and manner acceptable to the Minister.
21(4)When the Minister, another Schedule 2 entity, a public body or a jurisdiction requests that a Schedule 2 entity procure construction services on its behalf, the request shall be made in a form and manner acceptable to the Schedule 2 entity.
25Section 22 of the Act is repealed and the following is substituted:
22Any procurement done by or on behalf of the Minister, a Schedule B entity or a Schedule 2 entity may be done on a joint basis if the parties to the procurement agree to the procurement of goods, services or construction services on a joint basis and if it is appropriate in the circumstances.
26The Act is amended by adding after section 23 the following:
Disqualification and reinstatement of prospective contractor
23.1The disqualification of a prospective contractor from providing construction services to the Schedule 1 entities or a Schedule 2 entity, as the case may be, and the reinstatement of a prospective contractor’s ability to provide construction services shall be determined in accordance with the regime established by regulation.
27Section 24 of the Act is amended
(a) in subsection (1) by striking out “a Schedule A entity shall submit” and substituting “a Schedule A entity or a Schedule 1 entity, as the case may be, shall submit”;
(b) in subsection (2) by striking out “a Schedule A entity” and substituting “a Schedule A entity or a Schedule 1 entity”;
(c) by repealing subsection (3) and substituting the following: 
24(3)At any time, the Minister may require a Schedule B entity or a Schedule 2 entity to submit a report to the Minister concerning the procurements done by or on behalf of the entity in the time and manner that the Minister requires, and the report shall contain the information that the Minister requires.
28Section 25 of the Act is amended
(a) in subsection (1) of the French version by striking out “quant à ses” and “par elle” and substituting “quant aux” and “par celle-ci”, respectively;
(b) in subsection (2) of the French version by striking out “quant à ses” and “par elle” and substituting “quant aux” and “par celle-ci”, respectively;
(c) by adding after subsection (2) the following:
25(2.1)At any time, the Minister may require a Schedule 1 entity to submit a report to the Minister concerning complaints the Schedule 1 entity received from prospective contractors in relation to procurements done by the Schedule 1 entity.
25(2.2)At any time, the Minister may require a Schedule 2 entity to submit a report to the Minister concerning complaints the Schedule 2 entity received from prospective contractors in relation to procurements done by the Schedule 2 entity.
(d) in subsection (3) by striking out “subsection (1) or (2)” and substituting “subsection (1), (2), (2.1) or (2.2)”.
29Section 27 of the Act is amended
(a) in paragraph (b) of the English version by striking out “and” at the end of the paragraph;
(b) by adding after paragraph (b) the following: 
(b.1) a Schedule 2 entity; and
30Section 29 of the Act is amended
(a) by adding after paragraph (b) the following:
(b.1) prescribing entities for the purposes of the definition “Schedule 1 entity”;
(b.2) prescribing entities for the purposes of the definition “Schedule 2 entity”;
(b) by repealing paragraph c) of the French version and substituting the following:
(c) prescrire quels sont les biens et les services qu’une entité de l’annexe A n’est pas tenue d’obtenir par l’entremise du ministre;
(c) by adding after paragraph (c) the following:
(c.1) specifying the construction services that a Schedule 1 entity is not required to obtain through the Minister;
(d) in paragraph d) of the French version by striking out “de passer par le ministre pour obtenir des biens et des services” and substituting “d’obtenir des biens et des services par l’entremise du ministre”;
(e) by adding after paragraph (d) the following: 
(d.1) specifying the circumstances in which and the thresholds under which a Schedule 1 entity is not required to obtain construction services through the Minister;
(f) in paragraph f) of the French version by striking out “les modalités et les conditions selon lesquelles” and substituting “les modalités selon lesquelles et les conditions auxquelles”;
(g) by adding after paragraph (f) the following: 
(f.1) respecting the terms and conditions on which the Minister may procure construction services on behalf of a Schedule 2 entity, a public body or a jurisdiction;
(h) in paragraph g) of the French version by striking out “les modalités et les conditions selon lesquelles” and substituting “les modalités selon lesquelles et les conditions auxquelles”;
(i) by adding after paragraph (g) the following: 
(g.1) respecting the terms and conditions on which a Schedule 2 entity may procure construction services on behalf of the Minister, another Schedule 2 entity, a public body or a jurisdiction;
(j) in paragraph (h) by striking out “a Schedule A entity or a Schedule B entity” and substituting “a Schedule A entity, a Schedule B entity, a Schedule 1 entity or a Schedule 2 entity”;
(k) by repealing paragraph j) of the French version and substituting the following:
(j) dispenser une entité de l’annexe B de l’application des règles relatives aux modes d’approvisionnement et préciser les circonstances dans lesquelles et les biens et les services pour lesquels celle-ci en est dispensée;
(l) by adding after paragraph (j) the following:
(j.1) exempting a Schedule 2 entity from the application of the rules concerning the procurement methods, and specifying the circumstances in which and the construction services for which a Schedule 2 entity is exempt from the application of the rules;
(m) in paragraph (l) by striking out “the Minister or a Schedule B entity” and substituting “the Minister, a Schedule B entity or a Schedule 2 entity”;
(n) by adding after paragraph (n) the following:
(n.1) prescribing the circumstances under which the Minister or a Schedule 2 entity may give preferential treatment to a prospective contractor and the manner in which and the method by which preferential treatment may be given to a prospective contractor, including the following:
(i) prescribing classes of prospective contractors;
(ii) extending different levels of preferential treatment to prospective contractors based on the class to which they belong; and
(iii) establishing an order of priority for receiving preferential treatment based on the classes of prospective contractors;
(o) by adding after paragraph (o) the following:
(o.1) prescribing the offences under an Act of Parliament or any other Act of the Legislature or the regulations under those Acts for the purposes of the regime in which a conviction for any of the prescribed offences results in the disqualification of a prospective contractor from providing construction services to the Schedule 1 entities or a Schedule 2 entity, as the case may be, and prescribing the period of time the prospective contractor is disqualified, which period of time may vary for different prescribed offences;
(p) in paragraph (p) by striking out “the period of time and scope” and substituting “the period of time, commencement date and scope”;
(q) by adding after paragraph (p) the following: 
(p.1) prescribing the reasons, period of time and scope of a disqualification by the Minister of a prospective contractor from providing construction services to the Schedule 1 entities and, if none are prescribed, authorizing the Minister to determine, within prescribed parameters, the period of time, commencement date and scope of a disqualification;
(r) in paragraph q) by striking out “he or she is” and substituting “they are”;
(s) by adding after paragraph (q) the following:
(q.1) prescribing the process by which and the reasons for which the Minister may disqualify a prospective contractor from providing construction services to the Schedule 1 entities, including past performance, and the process by which and the reasons for which the Minister may reinstate a prospective contractor and prescribing the review process available to a prospective contractor before they are disqualified;
(t) in paragraph (r) by striking out “the period of time and scope” and substituting “the period of time, commencement date and scope”;
(u) by adding after paragraph (r) the following:
(r.1) prescribing the reasons, period of time and scope of a disqualification by a Schedule 2 entity of a prospective contractor from providing construction services to the Schedule 2 entity and, if none are prescribed, authorizing the Schedule 2 entity to determine, within prescribed parameters, the period of time, commencement date and scope of a disqualification;
(v) in paragraph s) of the French version by striking out “l’entité notamment, pour mauvais rendement et la marche à suivre pour sa réhabilitation et indiquer les raisons pour lesquelles il peut être réhabilité par l’entité et prescrire le processus de révision dont peut se prévaloir un aspirant-fournisseur avant qu’il ne soit déclaré inhabile” and substituting “l’entité, notamment pour mauvais rendement, et la marche à suivre pour sa réhabilitation, et indiquer les raisons pour lesquelles il peut être déclaré inhabile ou réhabilité par l’entité ainsi que prescrire le processus de révision dont il peut se prévaloir avant d’être déclaré inhabile”;
(w) by adding after paragraph (s) the following:
(s.1) prescribing the process by which and the reasons for which a Schedule 2 entity may disqualify a prospective contractor from providing construction services to the Schedule 2 entity, including past performance, and the process by which and the reasons for which a Schedule 2 entity may reinstate a prospective contractor and prescribing the review process available to a prospective contractor before they are disqualified;
(x) by adding after paragraph (t) the following: 
(t.1) prescribing the measures the Minister or a Schedule 2 entity may take when a contractor becomes disqualified from providing construction services to the Schedule 1 entities or a Schedule 2 entity, as the case may be, during the performance of a contract for construction services;
(t.2) authorizing the Minister of Transportation and Infrastructure to establish the form and content of a short form contract for construction services or a standard contract for construction services and to approve the form and content of an alternate form of contract for construction services;
(t.3) prescribing the circumstances in which a short form contract for construction services or a standard contract for construction services is to be used and authorizing the Minister of Transportation and Infrastructure to determine the circumstances in which an alternate form of contract for construction services is to be used;
(t.4) governing the contracts for construction services, including authorizing the collection of personal information either directly from an individual to whom the information relates or indirectly from another person;
(t.5) prescribing the types of bonds or security to be provided by a prospective contractor and specifying the circumstances in which each type is to be provided;
(t.6) authorizing the Minister of Transportation and Infrastructure to establish the form and content of an irrevocable standby letter of credit for the purposes of procurement of construction services;
(t.7) governing the substitution of a subcontractor or supplier during the procurement of construction services;
(t.8) in the event that a Schedule 1 entity or a Schedule 2 entity is a party to a contract for construction services, authorizing the head of the entity to delegate the authority to negotiate and settle any request by a contractor for an extension of time for the completion of work to be performed under the contract or any claim made by a contractor for additional money in respect of work performed under the contract;
(y) in paragraph (w) by striking out “goods and services” and substituting “goods, services and construction services”.
TRANSITIONAL AND SAVING PROVISIONS
Continued application of the provisions of the Crown Construction Contracts Act and Regulation 82-109 under that Act
31(1)Despite the repeal of the Crown Construction Contracts Act, chapter 105 of the Revised Statutes, 2014, and of New Brunswick Regulation 82-109 under that Act, and despite any inconsistency with the provisions of this Act and any regulation under this Act, the provisions of the Crown Construction Contracts Act and New Brunswick Regulation 82-109 under that Act, as they existed immediately before the commencement of this section, continue to apply to
(a) all contracts entered into before the commencement of this section, and
(b) all tenders opened before the commencement of this section.
31(2)For greater certainty, despite the repeal of the Crown Construction Contracts Act, chapter 105 of the Revised Statutes, 2014, and of New Brunswick Regulation 82-109 under that Act, and despite any inconsistency with the provisions of this Act and any regulation under this Act, an action may be commenced, dealt with and concluded under the provisions of the Crown Construction Contracts Act and New Brunswick Regulation 82-109 under that Act, as they existed immediately before the commencement of this section, with respect to
(a) all contracts entered into before the commencement of this section, and
(b) all tenders opened before the commencement of this section.
CONSEQUENTIAL AMENDMENTS,
REPEALS AND COMMENCEMENT
Education Act
32Section 50.1 of the Education Act, chapter E-1.12 of the Acts of New Brunswick, 1997, is amended by striking out “, the Crown Construction Contracts Act”.
Electricity Act
33 Subsection 37(12) of the Electricity Act, chapter 7 of the Acts of New Brunswick, 2013, is amended in the portion preceding paragraph (a) by striking out “the Crown Construction Contracts Act, the Public Purchasing Act and the Procurement Act and the regulations under any of those Acts, those Acts and regulations” and substituting “the Procurement Act and the regulations under that Act, that Act and those regulations”.
New Brunswick Highway Corporation Act
34The New Brunswick Highway Corporation Act, chapter N-5.11 of the Acts of New Brunswick, 1995, is amended
(a) in the heading “Application of the Crown Construction Contracts Act and the Procurement Act” preceding section 13 by striking out “the Crown Construction Contracts Act and”;
(b) by repealing section 13 and substituting the following: 
13(1)The Procurement Act applies to the Corporation.
13(2)Despite subsection (1), and despite any provision of the Procurement Act or the regulations under it,
(a) the Procurement Act and the regulations under it do not apply in respect of an agreement made between the Corporation and a project company, and
(b) if the Corporation enters into an agreement or forms a joint venture with another person for the purposes of this Act, the Procurement Act and the regulations under it do not apply in respect of further agreements or the purchase of supplies or services made by or other transactions carried out by that other person.
New Brunswick Liquor Corporation Act
35Section 14 of the New Brunswick Liquor Corporation Act, chapter 105 of the Revised Statutes, 2016, is amended
(a) in subsection (1) by striking out “Crown Construction Contracts Act” and substituting “Procurement Act”;
(b) in subsection (3) by striking out “Crown Construction Contracts Act” wherever it appears and substituting “Procurement Act”.
Repeal of the Crown Construction Contracts Act
36The Crown Construction Contracts Act, chapter 105 of the Revised Statutes, 2014, is repealed.
Repeal of regulations under the Crown Construction Contracts Act
37(1)New Brunswick Regulation 82-109 under the Crown Construction Contracts Act is repealed.
37(2)New Brunswick Regulation 82-113 under the Crown Construction Contracts Act is repealed.
Commencement
38This Act or any provision of it comes into force on a day or days to be fixed by proclamation.