Acts and Regulations

82-109 - General

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NEW BRUNSWICK
REGULATION 82-109
under the
Crown Construction Contracts Act
(O. C. 82-506)
Filed June 17, 1982
Under section 8 of the Crown Construction Contracts Act, the Lieutenant-Governor in Council makes the following Regulation:
1This Regulation may be cited as the General Regulation - Crown Construction Contracts Act.
2(1)In this Regulation
“claimant” means a subcontractor, material supplier, supplier or worker under contract with a contractor or subcontractor for supply of work, material, goods or supplies;(réclamant)
“Owner” means Her Majesty in the right of the Province, or an agency, corporation or Minister of the Crown designated in a contract to which the Act applies as a party to the contract with a contractor.(maître de l’ouvrage)
2(2)The following corporations and agencies are included in the definition of “Crown” for the purposes of the Act:
Collège communautaire du Nouveau-Brunswick (CCNB)
New Brunswick Community College (NBCC)
New Brunswick Energy Marketing Corporation
New Brunswick Housing Corporation
New Brunswick Liquor Corporation
New Brunswick Power Corporation
Regional Development Corporation
Research and Productivity Council
Workplace Health, Safety and Compensation Commission
2003, c.E-4.6, s.163; 2004-111; 2010-8; 2010-82; 2013, c.7, s.154
3This Regulation applies to every contract for the construction, repair or alteration of land or structures owned by the Crown.
4(1)Subject to subsection (2), every award of contract for the construction, repair or alteration of land or structures owned by the Crown shall be preceded by public tender.
4(2)Where a proposed contract for the construction, repair or alteration of land or structures owned by the Crown has a value, estimated by a Crown engineer or architect, of less than,
(a) in the instance of works other than highways, ten thousand dollars, the award of contract may be negotiated with one person,
(b) in the instance of highway work, thirty thousand dollars, the award of contract may be negotiated with one person,
(c) in the instance of works other than highways, forty thousand dollars, the award of contract may be preceded by tenders invited from not fewer than three persons, or
(d) in the instance of highway work, seventy-five thousand dollars, the award of contract may be preceded by tenders invited from not fewer than three persons,
rather than preceding the award of contract by public tender.
4(3)Where tenders are invited under paragraph (2)(c) or (2)(d),
(a) the invitation to tender shall stipulate the time, date and place of tender opening, and
(b) the tender opening, when carried out, shall be a public tender opening and shall include the posting of the names of the tenderers and the amounts of their respective bids.
4(4)Where an award of contract would fall within the provisions of subsection (2) but those provisions are not followed, the award shall be made in accordance with subsection (1).
5A contract to which the Act and this Regulation apply,
(a) where the amount of the accepted tender is greater than one hundred thousand dollars, shall be in Form 77-1408, published by the Queen’s Printer, or
(b) where the amount of the accepted tender is one hundred thousand dollars or less, shall be in Form 77-1120 or 77-1408, published by the Queen’s Printer,
with such minor variations in form as are approved by the Chair of the Treasury Board.
85-39; 85-136; 2016, c.37, s.43
6(1)Subject to subsections (2) and (5), every award of contract for the construction, repair or alteration of land or structures owned by the Crown and under the administration and control of the Minister of Education and Early Childhood Development shall be preceded by public tender.
6(2)Where a proposed contract for the construction, repair or alteration of land or structures owned by the Crown and under the administration and control of the Minister of Education and Early Childhood Development
(a) has a value, where a tender call is made by a District Education Council, of less than two thousand dollars as estimated by the District Education Council, the award of contract may be negotiated with and made to one person by the District Education Council,
(b) has a value, where the tender call is made by a District Education Council, of two thousand dollars or more but not exceeding ten thousand dollars as estimated by the District Education Council, the award of contract may be preceded by tenders invited from not fewer than three persons,
(c) has a value, as estimated by an engineer or architect of the Minister of Education and Early Childhood Development, of more than ten thousand dollars, the contract shall have tenders called and the award of contract made by the Minister of Education and Early Childhood Development in accordance with section 4, or
(d) is tendered by the Minister of Education and Early Childhood Development, the tender call shall, subject to subsection (5), be in accordance with the provisions of section 4.
6(3)Where tenders are invited by a District Education Council under paragraph (2)(b),
(a) the invitation to tender shall stipulate the time, date and place of tender opening, and
(b) the tender opening, when carried out, shall be a public tender opening and shall include the posting of the names of the tenderers and the amounts of their respective bids.
6(4)Notwithstanding paragraphs (2)(a) and (2)(b), the Minister of Education and Early Childhood Development may by notice in writing advise a District Education Council that a contract for the construction, repair or alteration of land or structures owned by the Crown and under the administration and control of the Minister of Education and Early Childhood Development shall have tenders called and the award of contract made by the Minister of Education and Early Childhood Development.
6(5)Where the Minister of Education and Early Childhood Development deems an emergency exists whereby lands or structures owned by the Crown and under the administration and control of the Minister of Education and Early Childhood Development require immediate reconstruction or repair and the provisions of paragraph (2)(b) would apply, he may
(a) by notice in writing authorize a District Education Council to negotiate with and award a contract to one person for such work as is necessary to alleviate the emergency if the value of the work as estimated by the District Education Council does not exceed ten thousand dollars, or
(b) negotiate with and award a contract to one person for such work as is necessary to alleviate the emergency if the value of the work as estimated by an engineer or architect of the Minister of Education does not exceed ten thousand dollars.
6(6)Where the Minister of Education and Early Childhood Development authorizes a District Education Council to act under paragraph (5)(a), the negotiation for a contract and the award thereof may be undertaken upon receipt by the District Education Council of a telegram, telex or telephone call from the Minister of Education and Early Childhood Development or his authorized representative which initial authorization shall be confirmed by proper notice in writing.
2009-121; 2010, c.31, s.29
7(1)A public tender for award of a contract to which this Regulation applies shall include:
(a) reasonably in advance of the tender closing date, public advertisement of the work to be carried out;
(b) sufficient information in the advertisement referred to in paragraph (a) to enable a prospective tenderer to obtain tender documents, deposit a tender and attend the tender opening; and
(c) the opening of properly deposited tenders in public and the posting of the name and the tender price of each tenderer whose tender is not rejected in accordance with section 11.
7(2)The provisions of this section and sections 8, 9, 10, 14, 21, 22 and 23 apply only to public tender calls.
7(3)Section 11 applies mutatis mutandis to invited tender calls.
2009-121
8(1)Only those tenders submitted by persons who have been listed either individually or jointly as having received tender documents from the Crown shall be considered.
8(2)Addenda to the tender documents shall be issued only to those persons listed in accordance with subsection (1).
8(3)It is the responsibility of a person submitting a tender to ensure that he is listed as having received tender documents.
8(4)Tender documents may only be obtained from the location named in a public notice of tender.
9(1)A person submitting a tender shall deposit the tender in the tender box at the location and within the time stipulated in the public notice of tender.
9(2)The responsibility for depositing a tender in the tender box in the proper location within the proper time is that of the person submitting the tender and the Crown assumes no responsibility for depositing in the tender box in the proper location within the proper time those tender submissions which have been mailed, transmitted or delivered to employees of the Crown.
9(3)Only those tenders deposited in the tender box shall be considered.
9(4)A person who has signed and submitted an original tender may amend it after it has been deposited in the tender box by ensuring that a letter, telegram, telex or facsimile telecopier copy, clearly identifying on its face the project being tendered and the tender being amended, is deposited in the tender box before the time stipulated for tender opening.
9(5)An amendment of tender shall not disclose the amended total tender price but shall show
(a) the revised bid price per items to be amended in the case of a unit price contract,
(b) the amount to be added to or subtracted from the contract price in the case of a lump sum contract, or
(c) the information that is missing from the original tender deposit.
9(6)Subsection (2) applies to a letter, telegram, telex or facsimile telecopier copy amending a tender.
9(7)If the tender deposit and amendment is found to be a valid submission of tender and amendment, the contract price shall be amended to reflect the original tender deposit as amended by the tender amendment.
87-168
10(1)Thirty minutes before the time limit for submission of tenders the tender box shall be moved to the location stipulated in the public notice of tender for the opening of tenders.
10(2)Tenders may be deposited in the tender box at the tender opening location up until the time stipulated in the notice of tender for the opening of tenders.
10(3)The representative of the Crown shall, at the time specified for tender opening in the notice of tender, declare
(a) that no further tenders shall be accepted, whereupon no further tenders may be deposited,
(b) that any person wishing to withdraw his tender shall do so immediately, whereupon the tenders of those persons wishing to withdraw shall be delivered up to those persons unopened, and
(c) that no further tenders may be withdrawn, whereupon the tender opening procedure shall be followed and no person shall be allowed to withdraw his tender.
11(1)A tender submitted for a proposed contract to which the Act and this Regulation apply shall be rejected and the tender shall not be considered if the tender
(a) is not accompanied by the required bid security deposit or bid bond in an amount equal to or greater than the amount stipulated,
(b) is not accompanied by a bid bond meeting the requirements of subsection 15(4), where a bid bond is required by the tender call,
(c) is not accompanied by a letter from a New Brunswick resident agent of an insurance company licensed to do business in the Province stating that the bid bond, where required, has been negotiated for, procured from and the premium paid to that agent,
(d) is not properly signed by the tenderer,
(e) does not contain the bid price, unit price or fixed price written in words,
(f) does not have the words “dollars” and, where applicable, “cents” set out in the written item bid,
(g) contains any form of qualification of or, unless the tender documents otherwise provide, any unsolicited alternative to the tender,
(h) does not contain a bid for each item required to be bid,
(i) contains a bid on an item not included in the bid form,
(j) is not contained in an envelope having on the face of it the name of the tenderer and identification of the contract for which the tender is submitted,
(k) does not contain all addenda issued to prospective tenderers, each signed by the tenderer,
(l) is the second one submitted by the same tenderer, in which case all tenders submitted by that tenderer shall be rejected,
(m) is made by a tenderer not listed or by a consortium which or each member of which is not listed by the Crown as having received tender documents from the Crown,
(n) contains a change in a written bid price not initialled by the tenderer,
(o) omits any document required by or fails to comply with any provisions of the tender documents, or
(p) otherwise materially deviates from accepted tendering practices.
11(2)Subject to subsection (1), a tender submitted for a proposed contract to which the Act and this Regulation apply may be accepted notwithstanding that it contains
(a) errors in mathematics, in which case the proper computation shall be carried out and the resultant total used in determining the tender value,
(b) a conflict between the written bid price and the bid price in numbers, in which case the bid shall be corrected to reflect the written bid price, or
(c) omission of a “provisional sum”, in which case the required “provisional sum” shall be inserted and the tender shall be corrected to reflect its inclusion where the “provisional sum” is specified by the Crown for a unit price contract, but the tender shall be rejected where the “provisional sum” is specified by the Crown for a fixed price contract.
11(3)The decision to accept or reject a tender as a valid submission of tender made at the time of tender opening by the Crown representative is final.
12(1)Persons submitting tenders shall submit their tenders with unit prices written out and lump sum prices written out.
12(2)The total tender price in a unit price tender does not need to be written out.
12(3)The written figures in a tender shall govern and be binding on the tenderer even though totals arrived at disagree with figures or totals given in figures.
13(1)A person submitting a tender as a general contractor shall list in his tender submission for each sub-trade requested to be listed in the tender documents
(a) the name of each sub-trade, whether obtained through a bid depository or not, and
(b) the price at which the sub-trade has agreed to provide the trade.
13(2)Where a person submits a tender as a general contractor and proposes to sub-trade to himself on one or more sub-trades listed in the tender documents, he shall, in his tender submission,
(a) identify each trade for which he is sub-trading to himself,
(b) state the price at which he will provide the trade, and
(c) set forth his qualifications for providing the sub-trade.
13(3)Where a person submits a tender as a general contractor and, with regard to the sub-trades listed in the tender documents, proposes to sub-trade to himself as well as to name sub-trades for other portions of the work, he shall comply with subsections (1) and (2).
13(4)A person submitting a tender shall list those sub-trades requested to be listed in the tender documents.
14(1)All tenders shall be opened by the tender opening committee in public at the location specified in the public notice of tender.
14(2)Each tender shall be opened individually and checked for completeness and where the tenderer has failed to comply with the requirements of subsection 11(1), the tender opening committee shall reject it forthwith.
14(3)If the tender and amendment of tender, if any, is not rejected, the tender price, as amended by an amendment of tender, if any, and the name of the person submitting the tender shall be posted.
14(4)If the tender is rejected, the tender shall be returned to the person submitting the tender.
14(5)The award of the contract shall not take place at the time of tender opening.
15(1)In this section and in section 16
“estimated contract value” means the estimated cost of carrying out the work as determined by the appropriate engineer or architect of the Crown.(valeur estimative du marché)
15(2)The Crown shall require a bid bond to be submitted with a tender if the estimated contract value of work to be performed is equal to or greater than five hundred thousand dollars.
15(3)The Crown may require a bid bond to be submitted with a tender if the estimated contract value of the work to be performed is less than five hundred thousand dollars.
15(4)A bid bond submitted pursuant to this section shall provide that if the tenderer is awarded the contract, a performance bond and a labour and material payment bond shall be supplied to the Crown in accordance with the provisions of section 17 by the same or another surety company.
15(5)Nothing in this section shall require the Crown to divulge the estimated contract value.
16(1)Where the Crown does not require a bid bond under subsection 15(3), the Crown shall, if the estimated contract value is five thousand dollars or greater, require a bid security deposit which shall be in the form of
(a) a certified cheque made payable to
(i) the Minister of Finance of the Province, or
(ii) if the contract is to be awarded by a corporation or agency set out in subsection 2(2), such corporation or agency, or
(b) negotiable securities in bearer form having a current market value at the time of tender equal to or greater than the amount of security deposit required.
16(2)Where the Crown does not require a bid bond under subsection 15(3), the Crown, if the estimated contract value is less than five thousand dollars, may, in the information supplied to bidders,
(a) stipulate that a bid security deposit as set forth in subsection (1) shall be deposited with the tender, or
(b) stipulate that a bid security deposit is not required, in which case the tender shall not be rejected as a valid submission of tender solely due to the absence of a bid security deposit.
16(3)Where negotiable securities are used as a bid security deposit under subsection (1), they shall consist of one or more of the following forms:
(a) bonds, debentures or securities of the Government of Canada or of the Government of any Province of Canada;
(b) bonds or debentures of a corporation, if payment of the bonds or debentures is guaranteed both as to principal and interest by Canada or any province of Canada, by a local government of this Province or by Opportunities New Brunswick;
(c) bonds or debentures of any local government of this Province;
(c.1) Repealed: 2017, c.20, s.48
(d) guaranteed trust or investment certificates or receipts of a trust company that is incorporated under the laws of Canada or of a Province of Canada and approved by the Lieutenant-Governor in Council under the Trust Companies Act;
(e) deposit receipts, deposit notes, certificates of deposit, acceptances and other similar instruments issued by or endorsed by a Canadian chartered bank, when such receipts, notes, certificates, acceptances and instruments are made in such manner that both the Crown and the tenderer are named payees therein and the Crown may call for redemption thereof, provided that the term thereof is not less than the estimated completion date of the contract being tendered with no restriction on early redemption other than as may be stipulated by way of reduced interest payable in the event of redemption prior to maturity; or
(f) irrevocable standby letter of credit set out in Form 1, issued by or endorsed by any of the following persons, within the meaning of the Canadian Payments Act (Canada):
(i) a bank or an authorized foreign bank,
(ii) a loan company or trust company that is a member of the Canadian Payments Association, or
(iii) a local cooperative credit society that is a member of a central that is a member of the Canadian Payments Association.
16(4)Where the Crown requires a bid security deposit under the section, the tender documents shall stipulate the amount of the bid security deposit.
16(5)Where, notwithstanding subsection (1), a tenderer has submitted a bid bond when a bid security deposit was required by the Crown in accordance with this section, the submission of the bid bond shall not be a cause for rejection of submission of tender provided that the bid bond submitted meets the requirements of subsection 15(4).
2005-60; 2008-94; 2010, c.31, s.29; 2015, c.2, s.62; 2017, c.20, s.48
17(1)Where a bid bond was required in the submission of tenders for the award of a contract to which the Act and this Regulation apply, a performance bond and a labour and material payment bond shall be supplied by the successful tenderer within the time stipulated in subsection 21(4).
17(2)The performance bond and the labour and material payment bond required by subsection (1) shall be in an account, for each bond, equal to fifty percent of the value of the accepted tender and be issued by a surety company acceptable to the Crown.
17(3)The labour and material payment bond required under this section shall be worded in a manner that is acceptable to the Crown.
18(1)Where a claimant has not been paid an amount owing for work, material, goods or supplies in connection with a contract to which the Act applies, the claimant may give the Crown a notice of claim in writing of such amounts owing and shall include in that notice the following:
(a) specific details of the work, material, goods or supplies done or supplied by the claimant including the time, date and place of performance thereof and specific details of the claimant’s contract, change order or request under which the work or supply was performed;
(b) the amount that has been received in payment by the claimant, if any, and the amount remaining unpaid to him; and
(c) such additional information as may be requested in writing by the Crown within ten days of receipt of such request.
18(2)A notice of claim shall be given to the Crown not sooner than thirty days from the date the claimant’s contract calls for him to be paid and not later than sixty days from that date.
18(3)Any notice of claim of an amount owing shall be delivered by registered mail or by personal service
(a) to the engineer-architect of the Owner in the contract with the contractor through which the claimant provides work, material, goods or supplies,
(b) to the contractor, and
(c) where the claimant is not under contract with the contractor directly, to the subcontractor with whom he has contracted.
18(4)Every notice of claim shall be signed by the claimant or an authorized representative thereof.
19(1)Where the Crown has received a notice of claim under section 18, the Crown shall notify the claimant of the withholding from the contractor of
(a) an amount equal to the sum described in the notice of claim as remaining unpaid to the claimant, or
(b) the amount remaining unpaid by the Owner to the contractor,
whichever is the lesser.
19(2)Where the Crown has withheld an amount owing to the contractor who is referred to in the notice of claim, the Crown shall not pay out any money to satisfy the claim unless
(a) the claimant for whom the money was withheld has jointly with the contractor or subcontractor from whom payment was claimed submitted to the Crown within ninety days of the service of the notice of claim on the Crown a document in writing, signed by both parties, setting forth their agreement on the distribution of the money held by the Crown, and
(b) the contractor, where he is not the person from whom the money was claimed, has concurred in the distribution of money agreed on under paragraph (a) by separate document or in that document,
but if ninety days have elapsed and neither paragraph (a) nor (b) has been complied with, the Crown may pay the money held to the contractor or subcontractor notwithstanding the claim.
19(3)The Crown upon receipt of the documents provided for in subsection (2) shall distribute the money held by it in accordance with those documents.
20(1)Where the Crown requires a bid security deposit under section 16, the bid security deposit of the successful tenderer shall, if a contract is entered into with that person, be held by the Crown as security for the due performance of the work by the contractor.
20(2)Where the bid security deposit of the successful tenderer is in the form of a certified cheque, the certified cheque
(a) where the Crown is not a corporation or agency named in subsection 2(2), shall be deposited in the Consolidated Fund and shall bear interest in accordance with the General Regulation - Financial Administration Act, or
(b) where the Crown is a corporation or agency named in subsection 2(2), shall be deposited at interest with any Canadian chartered bank,
pending disposition under the terms of the contract and any interest shall be deemed to be and treated as an increment to and part of the bid security deposit.
21(1)Subject to subsections (2) and (3), the Crown shall, within twenty-one days of the public tender opening for the contract, notify the successful tenderer by registered mail that he is the successful tenderer and call on him to enter into a formal contract for construction of the work.
21(2)Subsequent to the tender opening and prior to the expiry of the twenty-one day period provided for in subsection (1), the Crown may request all tenderers to agree in writing to an extension of the time within which it must notify tenderers under that subsection.
21(3)Where any tenderer has agreed to the extension of time requested under subsection (2), the time for giving notice under section (1) is extended by the amount of time contained in the request of the Crown made under subsection (2).
21(4)The successful tenderer notified in accordance with subsection (1) shall, within fourteen days of notification or within such further time as may be allowed by the Crown,
(a) where required by section 17, provide a performance bond and a labour and material payment bond in the amount stipulated,
(b) provide proof of insurance coverage of the type and in the amount stipulated in the tender document, and
(c) execute the formal contract.
22(1)If a successful tenderer does not comply with the provisions of section 21 within the time stipulated, he shall be considered to have refused to enter into the contract and section 24 applies.
22(2)Where default under subsection (1) occurs, the Crown may call upon the next suitable tenderer to enter into the contract in accordance with the provisions of section 21.
23A tender is binding on the person submitting the tender until such time as he receives formal notification by telegram, telex or registered mail of the rejection of his tender but in no case, unless as successful tenderer he has received notification under subsection 21(1), shall it be binding upon him for more than twenty-one days from the date of public tender opening or such additional days as are added thereto pursuant to subsections 21(2) and (3).
24Where the successful tenderer has been called upon to enter into formal contract by the Crown and refuses to do so within the time limit stipulated therefor, the Crown shall
(a) cash or negotiate the bid security deposit and retain a sum equal to the difference between the value of his tender and the value of the next lowest tender and shall return an amount equal to the surplus, if any, to the tenderer whose bid security deposit was so forfeited, or
(b) notify the surety company where a bid bond was submitted.
25(1)Where the tender documents stipulate that a statement shall accompany each tender indicating the price at which the tenderer would supply any named item or items from a named manufacturer, the tenderer shall submit with his tender a separate list showing the prices included in his tender price for the named item or items and the prices for such items if supplied by the named manufacturer.
25(2)The tender opening committee shall not post the information contained in the separate list.
25(3)The Crown may ask the successful tenderer to use the named items supplied by the named manufacturer in the construction of the work and his tender price per unit shall be amended accordingly.
26(1)The Crown may, after notifying the successful tenderer but before the contract is entered into, request the successful tenderer to accept a subcontractor or supplier other than one submitted by him in his tender, in which case
(a) the successful tenderer may refuse, or
(b) subject to subsection (2), if the successful tenderer accepts, his tender price shall be adjusted accordingly.
26(2)Where a bid depository has been stipulated in the tender call, the substituted subcontractor or supplier shall only be used where the substituted subcontractor or supplier has submitted a proper bid to the successful tenderer within the bid depository rules.
27The Machine Rental Regulation - Crown Construction Contracts Act shall apply to all contracts to which the Act and this Regulation apply.
28The Crown may require a contractor to supply insurance coverage on the work for the type of risk and in the amounts set forth in the tender documents.
29The Chair of the Treasury Board may waive the requirements of section 4, 21 or 23 with respect to any proposed contract.
85-39; 2001-84; 2016, c.37, s.43
30Regulation 73-10 under the Crown Construction Contracts Act is repealed.
31This Regulation comes into force on July 1, 1982.
N.B. This Regulation is consolidated to May 15, 2018.