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1In this Act

“contractor” means a person who contracts with the Crown to construct, repair or alter land or structures owned or administered by the Crown;(entrepreneur)

“Crown” means Her Majesty in right of the Province and includes any Minister of the Crown and any corporation or other agency prescribed by regulation; (Couronne)

“materialman” Repealed: 2009, c.48, s.1

“material supplier” means a person having a contract with a contractor, or with a subcontractor who has a contract with a contractor, for the supply of material to a contract; (fournisseur de matériaux)

“payment bond” means a bond held as security for the payment of certain classes of persons performing labour or services, or supplying materials in connection with a contract to which this Act applies; (garantie de paiement)

“subcontractor” means a person having a contract with a contractor and includes a person having a contract with a subcontractor who has a contract with a contractor; (sous-traitant)

“supplier” means a person having a contract with a contractor, or with a subcontractor who has a contract with a contractor, for the provision of goods and supplies to a contract; (fournisseur de biens et approvisionnements)

“worker” means a person who has a contract with a contractor, or with a subcontractor who has a contract with a contractor, to provide work on a contract;(travailleur)

“workman” Repealed: 2009, c.48, s.1

1972, c.8, s.1; 1981, c.19, s.1; 2009, c.48, s.1

Application of Act

2This Act applies to every contract for the construction, repair or alteration of land or structures owned or administered by the Crown.

1972, c.8, s.2; 1979, c.15, s.1

Enforcement of performance penalties

3Where a contract to which this Act applies provides that a contractor shall pay a penalty if he fails to complete his performance of the contract within the time stipulated therein, or any extension granted thereunder, that provision is enforceable against the contractor notwithstanding that

(a) it is not a pre-estimate of damages likely to be caused by non-performance by the contractor within the stipulated period, and

(b) the contract includes another provision for liquidated damages.

1972, c.8, s.3

Deduction of debts to the Crown from contract price

4Upon the direction of a Minister of the Crown, there shall be deducted from an amount owing to a contractor under a contract to which this Act applies an amount equal to an amount in which the contractor is indebted for any reason to the Crown, and notice shall be given to the contractor describing the debt to be satisfied out of the amount deducted.

1972, c.8, s.4

Extensions of time and claims for additional money

5Where, under a contract to which this Act applies, a request is made by a contractor for an extension of time for the completion of all or any portion of the work he is to perform under the contract, or a claim is made for additional money in respect of work he has performed under the contract, the Crown may, in writing stipulating the limits of the delegated authority, delegate to any person the authority to negotiate and settle the request or claim.

1972, c.8, s.5

Payment bond

6(1)Where an amount is due to the Crown under a payment bond, a person within a class covered by the bond who

(a) performed labour or services or supplied material in connection with a contract that is subject to this Act and in respect of which the payment bond is held as security, and

(b) has not been paid in full for the labour or services performed or material supplied by him under the contract within the time provided in the payment bond for payment to the class of persons of which he is a member,

is, without any act by or notice by or to the Crown, and without any notice to the person liable on the payment bond, an assignee of the right of the Crown to recover an amount under the payment bond equal to the lesser of

(c) the amount due to him for the labour, services or material, or

(d) the amount due to the Crown under the payment bond.

6(2)A person who is an assignee by virtue of subsection (1) may bring action in his own name to enforce payment under the payment bond, and the Crown shall not be a party to the action nor be liable for any costs in connection therewith.

6(3)A payment bond given in respect of a contract to which a Minister is a party shall be in the custody of the deputy head of the department under the control of that Minister and a payment bond given in respect of a contract to which a corporation or other agency, prescribed by regulation to be included in the definition “Crown” for the purposes of this Act, is a party shall be in the custody of the chief executive officer of that corporation or agency.

6(4)The person having custody of the payment bond shall provide a copy of the payment bond, certified to be a true copy, to any person who files with him an affidavit setting forth that he has performed labour or services or supplied material under the contract with respect to which the payment bond is held, and that he has not been paid in full therefor.

6(5)A document purporting to be a copy of a payment bond certified by the person having custody of the original is, without proof of the signature of the person, admissible in evidence in any court or before any person having by law or the consent of parties authority to hear, receive and examine evidence in any action to recover upon the bond and has the same probative force as the original document would have if it were proven in the usual way provided by law.

1972, c.8, s.6; 1981, c.19, s.2; 1984, c.C-5.1, s.47

Withholding of payment by Crown

7(1)Notwithstanding that a payment bond is in effect with respect to a contract to which this Act applies, the Crown, when notified in writing by a subcontractor, a material supplier, a supplier or a worker that a contractor or subcontractor has not paid the subcontractor, supplier, material supplier or worker an amount owing for work, materials, goods or supplies in connection with the contract or subcontract, may withhold from the contractor the amount owing under the contract.

7(2)Where an amount is withheld under subsection (1), the Crown shall immediately advise the contractor and where appropriate the subcontractor of the withholding and provide details of the claim.

7(3)After advising the contractor and where appropriate the subcontractor pursuant to subsection (2), the Crown, when it is satisfied that the amount claimed is owed by the contractor or subcontractor to the subcontractor, material supplier, supplier or worker making the claim, may pay to the subcontractor, material supplier, supplier or worker the amount owing to him by the contractor or subcontractor, as the case may be.

7(4)An amount paid by the Crown under subsection (3) discharges, to the extent of the payment,

(a) the amount owing by the Crown to the contractor under the contract,

(b) the amount owing by the contractor to the subcontractor, material supplier, supplier or worker under their contract,

(c) the amount owing by the subcontractor to the subcontractor, material supplier, supplier or worker if the claim is made by such person,

for the work, materials, goods or supplies in respect of which payment is made.

7(5)When under this section a claim is submitted to the Crown against a subcontractor by a subcontractor, material supplier, supplier or worker and the Crown pays the claim in accordance with this section, the contractor may withhold payment to the defaulting subcontractor for the subject matter of the claim if payment has not already been made, or may, if payment has already been made by the contractor to that subcontractor, recover from that subcontractor the amount of the claim.

1972, c.8, s.7; 1981, c.19, s.3; 2009, c.48, s.2

Regulations

8The Lieutenant-Governor in Council may make regulations

(a) prescribing the procedures to be used in the submission of tenders for the construction, repair or alteration of land or structures owned by the Crown;

(b) prescribing the basis on which tenders may be rejected;

(c) authorizing the person having charge of a public tender opening to exercise his discretion in the rejection or acceptance of tenders where matters not covered by the regulations arise;

(d) prescribing the type of security to be provided by a tenderer and the security to be provided by the successful tenderer upon award of a contract;

(e) prescribing the type of limits of insurance to be provided by a contractor;

(f) prescribing machinery rental rates;

(g) prescribing forms to be used in the administration of contracts;

(h) prescribing procedures to be used in the administration of construction contracts;

(h.1) respecting the procedures to be followed with respect to claims submitted in accordance with section 7 and prescribing terms and conditions for the withholding, payment and release of money by the Crown under that section;

(i) prescribing corporations and other agencies to be included in the definition “Crown” for the purposes of this Act.

1972, c.8, s.8; 1981, c.19, s.4

SCHEDULE A

Repealed: 1981, c.19, s.5

1972, c.8, Schedule A; 1981, c.19, s.5

N.B. This Act is consolidated to February 9, 2015.

C-36 - Crown Construction Contracts Act

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