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Regulation number	Title
2012, c.20	Procurement Act

Under section 29 of the Procurement Act, the Lieutenant-Governor in Council makes the following Regulation:

Citation

2022-77

1This Regulation may be cited as the Goods and Services Regulation – Procurement Act.

2022-77

1

INTERPRETATION

Definitions

2The following definitions apply in this Regulation.

“ACAN” means an Advance Contract Award Notice provided for in section 157.1.(PAC)

“Act” means the Procurement Act.(Loi)

“Atlantic Canadian supplier” means a supplier of goods or services that has a place of business in Atlantic Canada. (fournisseur du Canada atlantique)

“Atlantic supplier” Repealed: 2022-77

“Canadian good” means a good produced exclusively from domestic materials, a good manufactured in Canada or a good that, if exported outside Canada, would qualify as a good of Canada under applicable rules of origin.(bien canadien)

“Canadian service” means a service performed in Canada by (service canadien)

(a) an individual who is a resident of a province or territory of Canada, or

(b) an enterprise constituted, established or organized under the law of Canada or the law of a province or territory of Canada.

“Canadian supplier” means a supplier of goods or services that has a place of business in Canada.(fournisseur canadien)

“Canadian value-added” means(valeur ajoutée canadienne)

(a) for a procurement of goods or services commenced before July 2, 2019, Canadian value-added as defined in Article 518 of the Agreement on Internal Trade, and

(b) for a procurement of goods or services commenced on or after July 2, 2019, Canadian value-added as defined in Article 520 of the CFTA.

“CETA” means the Comprehensive Economic and Trade Agreement between the Government of Canada and the European Union and its Member States, done at Brussels on October 30, 2016, including any amendments made to the agreement. (AECG)

“CFTA” means the Canadian Free Trade Agreement signed in 2017 by the Government of Canada and the governments of the provinces and territories of Canada, including any amendments made to the agreement.(ALEC)

“competitive bidding process” means a procurement method used to acquire goods and services through a solicitation for bid submissions that is open to more than one supplier and includes, but is not limited to, an invitation to tender, a request for proposals and a reverse auction.(appel à la concurrence )

“cultural industries” means cultural industries as defined in the CFTA.(industries culturelles)

“estimated value” means the estimated maximum total value of a procurement contract and any optional renewals of a procurement contract or, in the case of a standing offer agreement, the estimated maximum total value of all procurement contracts anticipated under the agreement for its original duration and any optional renewals of the procurement contracts, and includes transportation costs, maintenance costs, costs associated with the manufacture of goods, installation costs, tariffs, duties, premiums, fees, commissions, interest and any other costs incidental to the purchase of the goods or services, but does not include taxes.(valeur estimée)

“government enterprise” means a government enterprise as defined in the CFTA.(entreprise publique)

“informal quote” means a request by a procuring entity to one or more suppliers for pricing on specific goods or services without a solicitation for bid submissions that is not binding on either party.(demande de prix)

“limited competitive bidding” means a competitive bidding process that is limited in some aspect when bid submissions are solicited.(appel à la concurrence restreinte)

“New Brunswick manufacturer” means a manufacturer of goods that has a place of business in New Brunswick.(fabricant néo-brunswickois )

“New Brunswick supplier” means a New Brunswick manufacturer or a New Brunswick vendor.(fournisseur néo-brunswickois)

“New Brunswick vendor” means a vendor of goods or services that has a place of business in New Brunswick.(vendeur néo-brunswickois)

“open competitive bidding process” means a competitive bidding process in which bid submissions are solicited by public advertisement and that is open to all interested suppliers.(appel à la concurrence ouverte)

“place of business” means an establishment where a vendor or manufacturer conducts activities on a permanent basis, is clearly identified by name and is accessible during normal business hours. (établissement commercial)

“procuring entity” means(entité acquéresse)

(a) in the case of a Schedule A entity, the Minister or, if the Act and this Regulation authorizes a Schedule A entity to procure its own goods and services, the Schedule A entity, or

(b) in the case of a Schedule B entity, the Schedule B entity regardless of whether the procurement is a joint procurement or the Minister procures on its behalf.

“SDRs” means special drawing rights, a unit of exchange created and maintained by the International Monetary Fund.(DTS)

“small business” means a business that employs fewer than 100 persons.(petite entreprise)

“standing offer agreement” means a procurement contract with a supplier by which a procuring entity agrees to buy goods or services, when needed, from the supplier for a period specified in the contract and the contract includes all terms applicable to the procurement, including the cost of the good or service and delivery requirements. (marché à commandes)

“trade agreement” means a domestic or international trade agreement. (accord commercial)

2019-20; 2022-77

Competitive bidding process

3A competitive bidding process may be done in different stages and using different processes, that may or may not bind the parties, if to do so would enable the procuring entity to better identify the subject of the procurement and would enable prospective suppliers to determine if they wish to participate in the competitive process.

Mixed procurement of goods and services

4When both goods and services are to be obtained by a procurement process, the procurement shall be treated as one of the following:

(a) a procurement for services, if the estimated value of the services to be obtained is greater than the estimated value of the goods to be obtained; or

(b) a procurement for goods, if the estimated value of the goods to be obtained is greater than the estimated value of the services to be obtained.

Adjustment for inflation

2019-20

4.1(1)The lowest applicable threshold values of any relevant trade agreements referred to in this Regulation shall, if the relevant trade agreement provides for inflation-related adjustments to its threshold values, be adjusted for inflation in accordance with the trade agreement.

4.1(2)The amount of $100,000 referred to in section 13, subsection 13.2(1), section 14, subsection 14.2(1) and section 59 shall be adjusted for inflation in accordance with Annex 504.4 of the CFTA.

2019-20; 2022-77

Estimated value - international trade agreements

Repealed: 2019-20

2019-20

5Repealed: 2019-20

2019-20

2

PROCUREMENT FOR SCHEDULE A ENTITIES

A

Rules for Procurement

Appropriate authorizations

6A Schedule A entity shall ensure that appropriate authorizations are obtained before beginning a procurement process, regardless of whether the procurement is done through the Minister.

Standing offer agreement

7A Schedule A entity for which a standing offer agreement has been entered into by the Minister shall obtain the goods or services for which the agreement has been entered into through that agreement unless

(a) the agreement provides for exceptions, or

(b) the Act or this Regulation provides otherwise.

Printing services

8A Schedule A entity shall obtain printing services through Service New Brunswick’s Print Centre, regardless of the estimated value of the service, unless the Act or this Regulation provides otherwise.

2015, c.44, s.104

Translation and interpretation services

9(1)A Schedule A entity shall obtain translation and interpretation services through the Translation Bureau of Service New Brunswick, regardless of the estimated value of the service, unless the Act or this Regulation provides otherwise.

9(2)Subsection (1) applies only with respect to translation and interpretation between the Province’s official languages.

9(3)Repealed: 2019-20

2015, c.44, s.104; 2015-65; 2019-20

Information technology services

2015-65

9.1(1)A Schedule A entity shall obtain information technology services through Service New Brunswick, regardless of the estimated value of the service, unless the Act or this Regulation provides otherwise.

9.1(2)Subsection (1) does not apply to the following Schedule A entities:

(a) Elections New Brunswick;

(b) the Labour and Employment Board;

(c) the Language Training Centre;

(d) the Legislative Assembly;

(e) the Office of the Auditor General;

(f) the Office of the Lieutenant-Governor; and

(g) the Office of the Leader of the Opposition.

2015-65

Information technology goods

2015-65

9.2(1)A Schedule A entity shall obtain information technology goods through Service New Brunswick, regardless of the value of the goods, unless the Act or this Regulation provides otherwise.

9.2(2)Subsection (1) does not apply to the following Schedule A entities:

(a) Elections New Brunswick;

(b) the Labour and Employment Board;

(c) the Language Training Centre;

(d) the Legislative Assembly;

(e) the Office of the Auditor General;

(f) the Office of the Leader of the Opposition; and

(g) the Office of the Lieutenant-Governor.

2015-65

Goods from Central Stores

Repealed: 2019-20

2019-20

10Repealed: 2019-20

2015, c.44, s.104; 2019-20

Goods procured by the Minister

11Despite any other provision of this Regulation, when the Minister procures the following goods, the Minister is not required to procure them through a competitive bidding process if their estimated value is less than $10,000:

(a) gifts and mementos for visiting dignitaries; and

(b) goods required in conjunction with visits by the Royal Family and heads of state.

Exemption from procuring through the Minister

12(1)A Schedule A entity is exempt from procuring goods or services through the Minister in the following circumstances:

(a) when the goods have an estimated value of less than $10,000; or

(b) when the service has an estimated value of less than $50,000.

12(2)Before a Schedule A entity procures goods or services under subsection (1), it shall obtain informal quotes from suppliers if it is practicable to do so.

12(3)If a Schedule A entity requests the Minister to procure goods or services referred to in subsection (1), before procuring those goods or services, the Minister shall obtain informal quotes from suppliers if it is practicable to do so.

12(4)The exemption in subsection (1) does not apply to a good or service to which section 7, 8, 9, 9.1 or 9.2 applies.

12(5)Repealed: 2019-20

2015-65; 2019-20; 2022-77

Procuring goods valued between specified amounts

2019-20

13When procuring goods on behalf of a Schedule A entity that have an estimated value that is at least $10,000 and less than the lesser of $100,000 and the lowest applicable threshold value of any relevant trade agreements, the Minister shall use one of the following procurement methods:

(a) a limited competitive bidding process;

(b) an open competitive bidding process; or

(c) mutual agreement, if it is permitted by this Regulation.

2019-20; 2022-77

Procuring goods valued below trade agreement thresholds for specified Schedule A entities

Repealed: 2019-20

2015-65; 2019-20

13.1Repealed: 2019-20

2015-65; 2019-20

Procuring goods valued between specified amounts for specified Schedule A entities

2015-65; 2019-20

13.2(1)Despite any other provision of this Regulation, when procuring goods on behalf of a Schedule A entity listed in subsection (2), the Minister is not required to procure them through a competitive bidding process if the goods have an estimated value that is at least $10,000 and less than the lesser of $100,000 and the lowest applicable threshold value of any relevant trade agreements.

13.2(2)Subsection (1) applies to the following Schedule A entities:

(a) Opportunities New Brunswick; and

(b) the Regional Development Corporation.

2015-65; 2019-20; 2022-77

Procuring services valued between specified amounts

2019-20

14When procuring services on behalf of a Schedule A entity that have an estimated value that is at least $50,000 and less than the lesser of $100,000 and the lowest applicable threshold value of any relevant trade agreements, the Minister shall use one of the following procurement methods:

(a) a limited competitive bidding process;

(b) an open competitive bidding process; or

(c) mutual agreement, if it is permitted by this Regulation.

2019-20; 2022-77

Procuring services valued below trade agreement thresholds for specified Schedule A entities

Repealed: 2019-20

2015-65; 2019-20

14.1Repealed: 2019-20

2015-65; 2019-20

Procuring services valued between specified amounts for specified Schedule A entities

2015-65; 2019-20

14.2(1) Despite any other provision of this Regulation, when procuring services on behalf of a Schedule A entity listed in subsection (2), the Minister is not required to procure them through a competitive bidding process if the services have an estimated value that is at least $50,000 and less than the lesser of $100,000 and the lowest applicable threshold value of any relevant trade agreements.

14.2(2)Subsection (1) applies to the following Schedule A entities:

(a) Opportunities New Brunswick; and

(b) the Regional Development Corporation.

2015-65; 2019-20; 2022-77

Limited competitive bidding

15When a limited competitive bidding process is used in accordance with section 13 or 14, the process, if possible, shall be limited to prospective New Brunswick suppliers.

Procuring goods and services valued above amounts referred to in section 13, 13.2, 14 or 14.2

2019-20

16When the Minister, on behalf of a Schedule A entity, procures goods or services that have an estimated value above the lowest applicable threshold value of any relevant trade agreements referred to in section 13, 13.2, 14 or 14.2 or $100,000, whichever is the lesser, the goods or services shall be procured through an open competitive bidding process unless an alternative procurement method is authorized in the circumstances by this Regulation.

2015-65; 2019-20; 2022-77

Authorized procurement methods

2019-20

17So long as the Minister is not doing so for the purpose of averting competition among prospective suppliers or for the purpose of discriminating against a prospective supplier, the Minister may use any procurement method authorized by this Regulation if, in response to a competitive bidding process under section 13, 14 or 16,

(a) no bid submissions are received or none of the bid submissions is acceptable, or

(b) no prospective suppliers requested participation or no prospective suppliers satisfied the conditions for participation.

2019-20; 2022-77

B

Exemptions - General Provisions

Application

18The exemptions in sections 20 to 32 apply to the procurement of the following goods and services, unless the applicable section provides otherwise:

(a) goods that have an estimated value of less than $10,000; and

(b) services that have an estimated value of less than $50,000.

Schedule A entity may procure through the Minister

19The Minister may procure goods and services listed in sections 20 to 32 for a Schedule A entity and the Minister is not required to procure those goods and services through a competitive bidding process.

Exemptions for all Schedule A entities

20A Schedule A entity is exempt from procuring the following goods and services through the Minister and is not required to procure them through a competitive bidding process:

(a) books, if the Schedule A entity has its own librarian or specialized books are bought with special discounts;

(b) magazines, periodicals, newspapers, compact discs, CD-ROMS and other similar prerecorded media, recordings, recorded tapes, films, film strips and printed test materials;

(c) gasoline, oil, running repairs and maintenance required during normal operation of government-owned vehicles that have a credit card supplied by the Schedule A entity or the Department of Transportation and Infrastructure;

(d) repairs to government vehicles, when both parts and labour are included;

(e) gasoline, diesel fuel and heating oil, if the quantity purchased is too small to take advantage of delivery under contracts, up to a limit of 500 litres weekly;

(f) goods for projects financed on a cost-shared basis between the federal and provincial governments and purchased according to federal government regulations;

(g) groceries and meals for firefighting crews and highway work crews; and

(h) despite section 18, laboratory services procured from the New Brunswick Research and Productivity Council, regardless of their estimated value.

2017, c.3, s.31

C

Special Exemptions for Schedule A entities

Department of Agriculture, Aquaculture and Fisheries

21The Department of Agriculture, Aquaculture and Fisheries is exempt from procuring the following goods through the Minister and is not required to procure them through a competitive bidding process:

(a) pharmaceuticals for use by the Veterinary Laboratory and Pathology Services Unit and the Veterinary Field Services and Veterinary Clinic Unit;

(b) fish and crustaceans used for applied research, promotional programs, fish food and broodstock; and

(c) experimental aquaculture equipment, experimental fishing equipment, experimental aquatic resource equipment, experimental vessel equipment and consumable goods to be used in applied research programs.

Elections New Brunswick

22Elections New Brunswick is exempt from procuring the following goods through the Minister and is not required to procure them through a competitive bidding process:

(a) specialized stationery used in an electoral district for an election if the procurement is made under the direction of the Chief Electoral Officer; and

(b) office supplies used in an electoral district for an election if the procurement is made under the direction of the Chief Electoral Officer.

Department of Post-Secondary Education, Training and Labour

23The Department of Post-Secondary Education, Training and Labour is exempt from procuring the following goods and services through the Minister and is not required to procure them through a competitive bidding process:

(a) school textbooks and textbook materials whether in paper or digital format, if their estimated value is less than $25,000;

(b) goods required by students attending courses for use during training and for resale to the individual student; and

(c) software to be used for educational purposes only.

Department of Education and Early Childhood Development

24(1)The Department of Education and Early Childhood Development is exempt from procuring the following goods and services through the Minister and is not required to procure them through a competitive bidding process:

(a) school textbooks and textbook materials whether in paper or digital format, if their estimated value is less than $25,000;

(b) yearbooks, if their estimated value is less than $25,000;

(c) instructional films, streaming media services, videos and subscriptions to these services for educators or students, if their estimated value is less than $25,000;

(d) software to be used for educational purposes only;

(e) goods for schools and school district offices, if their estimated value, excluding shipping, taxes, duties and other incidental costs, does not exceed $1,500 per transaction;

(f) good and services purchased on an individual basis for clients of early childhood development programs;

(g) goods, including parts to be used in the repair and overhauling of equipment, which are charged back to the owner of the equipment other than tools or items to be placed in stock;

(h) educational school trips; and

(i) educational performances such as plays, concerts and exhibitions.

24(2)The Department of Education and Early Childhood Development is exempt from procuring student conveyance services through the Minister, regardless of the estimated value of the service, if the procurement is made in accordance with sections 23 and 24 of New Brunswick Regulation 2001-51 under the Education Act.

Department of Health

25(1)The Department of Health is exempt from procuring the following goods and services through the Minister and is not required to procure them through a competitive bidding process:

(a) subject to subsection (2), drugs and related supplies prescribed for patients who have been accepted as the responsibility of the Department of Health and have been discharged from a hospital facility or institution to their home or are new patients under the homecare program; and

(b) prescribed drugs for inmates in provincial penal institutions.

25(2)Prescriptions for drugs referred to in paragraph (1)(a) shall be filled locally and shall not be used for stock or stock replacement.

2023-65

Department of Justice and Public Safety

2016, c.37, s.151; 2019, c.2, s.117; 2020, c.25, s.89

26The Department of Justice and Public Safety is exempt from procuring the following goods and services through the Minister and is not required to procure them through a competitive bidding process:

(a) paralegal services; and

(b) actuarial services.

(c) Repealed: 2023-65

2016, c.37, s.151; 2019, c.2, s.117; 2020, c.25, s.89; 2023-65

Department of Public Safety

Repealed: 2020, c.25, s.89

2020, c.25, s.89

26.1Repealed: 2020, c.25, s.89

2019, c.2, s.117; 2020, c.25, s.89

Office of the Attorney General

Repealed: 2019, c.2, s.117

2019, c.2, s.117

27Repealed: 2019, c.2, s.117

2019, c.2, s.117

Department of Public Safety

Repealed: 2016, c.37, s.151

2016, c.37, s.151

28Repealed: 2016, c.37, s.151

2016, c.37, s.151

Department of Natural Resources and Energy Development

2019, c.29, s.201

29The Department of Natural Resources and Energy Development is exempt from procuring the following goods and services through the Minister and is not required to procure them through a competitive bidding process:

(a) gravel, sand, sandstone, rock and borrow material required for provincial tree nurseries if the department can demonstrate that transportation costs or technical considerations impose geographical limits on the available supply base; and

(b) goods and services required in the course of a special investigation undertaken for the purposes of protecting land and water and their mineral, vegetable and other components, including flora, fauna and fish, if

(i) the estimated value of the goods is less than $25,000, and

(ii) the estimated value of the services is less than $50,000.

2016, c.37, s.151; 2019, c.29, s.201

Department of Social Development

30The Department of Social Development is exempt from procuring the following goods and services through the Minister and is not required to procure them through a competitive bidding process:

(a) goods and services purchased on an individual basis for clients of the department; and

(b) goods, including parts, and repair services for the Emergency Housing Repair Program, but only those goods and services that are required to render a dwelling fit for human habitation.

Department of Tourism, Heritage and Culture

31The Department of Tourism, Heritage and Culture is exempt from procuring the following goods through the Minister and is not required to procure them through a competitive bidding process:

(a) topsoil, sand, sandstone, rock, lime and borrow material required for provincial parks;

(b) items purchased for resale;

(c) livestock purchased or rented for historic sites;

(d) costumes and costume material for tourist site interpreters;

(e) artefacts and reproductions for historical projects;

(f) handicraft items to be used for display purposes;

(g) books and related items for historical projects; and

(h) works of art and crafts.

2019-20

Department of Transportation and Infrastructure

32The Department of Transportation and Infrastructure is exempt from procuring the following goods and services through the Minister and is not required to procure them through a competitive bidding process:

(a) the following materials, if the estimated value of the materials is less than 200,000 SDRs and if the department can demonstrate that transportation costs or technical considerations impose geographical limits on the available supply base:

(i) gravel, sand, sandstone, rock and borrow material required for the maintenance and construction of highways and bridges;

(ii) asphalt mix for highway maintenance; and

(iii) concrete mix for highway and bridge maintenance and construction;

(a.1) road salt for the maintenance of highways and bridges, regardless of the estimated value;

(b) equipment rented for less than one year if rental rates are established for the equipment by the Minister of Transportation and Infrastructure;

(c) repairs to heavy equipment if the cost of the repairs cannot be estimated before they are begun;

(d) fuel and parts for and operation and maintenance of government-operated aircraft;

(e) repairs to government-operated aircraft; and

(f) works of art to be used for decorative purposes.

2019-1; 2019-20; 2022-77

D

Disqualification of Prospective Suppliers

i

Disqualification

2019-20

Disqualification

2019-20

33(1)If there is supporting evidence, the Minister may disqualify for a period of no more than 24 months a prospective supplier from providing goods and services to Schedule A entities for the following reasons:

(a) significant or persistent deficiencies in the performance of any substantive requirement or obligation under a prior procurement contract or contracts;

(b) false declarations;

(c) professional misconduct or acts or omissions that adversely reflect on the commercial integrity of the prospective supplier; or

(d) failure to pay taxes.

33(2)If there is supporting evidence, the Minister may disqualify a prospective supplier that has become an insolvent person or a bankrupt within the meaning of the Bankruptcy and Insolvency Act (Canada) from providing goods and services to Schedule A entities for the period during which the prospective supplier is an insolvent person or a bankrupt, as the case may be.

2019-20; 2022-77

Commencement of the disqualification period

2022-77

33.1The period of disqualification under subsection 33(1) begins on the date determined by the Minister.

2022-77

Elements of past performance

34Subject to section 46, a prospective supplier’s performance under a procurement contract that was in force within two years before the coming into force of this Regulation may be taken into account in determining whether the prospective supplier should be disqualified.

2022-77

Conditions precedent

35Before disqualifying a prospective supplier under subsection 33(1), the Minister shall give the prospective supplier notice by registered mail of the intention to disqualify the prospective supplier, and the notice shall include the following information:

(a) the reasons, with details, for which the Minister is considering disqualifying the prospective supplier;

(b) the intended length of the disqualification;

(c) that the prospective supplier, within 15 days after receiving the notice, may object to the intended disqualification by sending a notice of objection to the Minister by registered mail;

(d) that the prospective supplier has a right to be represented by counsel if the prospective supplier chooses to object to the disqualification; and

(e) that the prospective supplier may present its objection in person or in writing.

2019-20; 2022-77

Objection in writing

36If a prospective supplier chooses to object in writing, the prospective supplier shall include with the notice of objection all the documents in the supplier’s possession that support the objection.

Objection in person

37(1)If a prospective supplier chooses to have an objection heard in person, the Minister shall set a date, time and place to hear the prospective supplier’s objection, and the hearing shall occur within 15 days after receipt of the notice of objection.

37(2)Despite subsection (1), the prospective supplier may agree to be heard by the Minister more than 15 days after receipt of the notice of objection, but the hearing shall be held within 30 days after receipt of the notice of objection.

2022-77

Decision

38(1)The decision to disqualify a prospective supplier under section 33 shall be in writing and specify the commencement date of the disqualification.

38(2)The decision to disqualify a prospective supplier under subsection 33(1) shall be made

(a) if a notice of objection has not been received, within five days after the period for sending a notice of objection has expired,

(b) if a hearing has been held in accordance with section 37, within 15 days after the hearing, or

(c) if an objection has been made in writing under section 36, within 15 days after the documents supporting the objection are received.

2019-20; 2022-77

Conditions on disqualification

39The Minister may impose on a supplier’s disqualification conditions relating to the scope of the disqualification.

Decision is final

Repealed: 2022-77

2022-77

40Repealed: 2022-77

2022-77

Judicial review

Repealed: 2022-77

2022-77

41Repealed: 2022-77

2022-77

Automatic reinstatement

2022-77

41.1After the period of disqualification determined by the Minister under subsection 33(1) expires, the prospective supplier is reinstated.

2022-77

Application for reinstatement

2022-77

42(1)A prospective supplier who has been disqualified for more than six months under subsection 33(1) may apply in writing to the Minister to be reinstated

(a) after six months have elapsed from the date of the decision to disqualify the prospective supplier, or

(b) if the prospective supplier is not reinstated under paragraph (a), after six months have elapsed from the date of the decision denying reinstatement.

42(2)A prospective supplier that has been disqualified under subsection 33(2) may apply in writing to the Minister to be reinstated if the prospective supplier is no longer an insolvent person or a bankrupt.

2019-20; 2022-77

Reinstatement

2022-77

43(1)On application under subsection 42(1), the Minister may reinstate a prospective supplier that has been disqualified under subsection 33(1) if the Minister is satisfied that the prospective supplier has taken appropriate corrective measures.

43(2)On application under subsection 42(2), the Minister shall reinstate a prospective supplier that has been disqualified under subsection 33(2) if the Minister is satisfied that the prospective supplier is no longer an insolvent person or a bankrupt.

2019-20; 2022-77

Subsequent applications for reinstatement

Repealed: 2022-77

2022-77

44Repealed: 2022-77

2022-77

Total period of disqualification

Repealed: 2022-77

2022-77

45Repealed: 2022-77

2019-20; 2022-77

Subsequent disqualification

46(1)A prospective supplier may be disqualified under section 33 more than once.

46(2)The facts that gave rise to a prospective supplier’s previous disqualification may not be considered with respect to a subsequent disqualification, but the fact that the prospective supplier has been previously disqualified may be considered.

Subsequent disqualification - period of disqualification

Repealed: 2022-77

2022-77

47Repealed: 2022-77

2019-20; 2022-77

Disqualification during performance of a procurement contract

48(1)The Minister may disqualify a prospective supplier under section 33 despite that the supplier is in the course of fulfilling a procurement contract for a Schedule A entity.

48(2)If a prospective supplier is disqualified in the circumstances set out in subsection (1), the Minister may cancel any existing procurement contract that supplier has with the Schedule A entity unless it would be too costly or otherwise detrimental to the Province.

48(3)If the Minister does not cancel a procurement contract under subsection (2), the Minister may take those oversight measures with respect to the contract that the Minister considers appropriate, including any of the following:

(a) inspections;

(b) measures to prevent delays; and

(c) close tracking of the stages or different aspects of the contract.

2022-77

Disqualification during procurement process

49The Minister shall not award a procurement contract to a prospective supplier who becomes disqualified under section 33 during the procurement process with respect to that contract.

Prospective supplier not an individual

50(1)A prospective supplier that is not an individual is deemed to be disqualified under section 33 when a person who has a controlling interest in that prospective supplier is disqualified under section 33.

50(2)A prospective supplier that is not an individual is deemed to be disqualified under section 33 when that prospective supplier has a controlling interest in another prospective supplier that is disqualified under section 33.

2022-77

ii

Disqualification for Offences

Automatic disqualification

51A prospective supplier who is guilty of an offence listed in Schedule C is disqualified from providing goods and services to Schedule A entities for the corresponding period indicated in Schedule C.

Guilty verdict during performance of procurement contract

52(1)If a supplier is found guilty of an offence referred to in section 51, the Minister shall cancel any existing procurement contracts that supplier has with respect to a Schedule A entity unless to do so would be too costly for or otherwise detrimental to the Province.

52(2)If the Minister does not cancel a procurement contract under subsection (1), the Minister may take those oversight measures with respect to the contract that the Minister considers appropriate, including any of the following:

(a) inspections;

(b) measures to prevent delays; and

(c) close tracking of the stages or different aspects of the contract.

Guilty verdict during procurement process

53The Minister shall not award a procurement contract to a prospective supplier who becomes disqualified under section 51 during the procurement process with respect to that contract.

Commencement of the disqualification period

54The period of disqualification under section 51 begins on the expiration of the time period to file an appeal with respect to the verdict that gave rise to the disqualification.

2022-77

Disqualification not retrospective

55Only an offence committed after this Regulation comes into force shall result in a disqualification under section 51.

3

PROCUREMENT BY SCHEDULE B ENTITIES

A

Rules for Procurement

Appropriate authorizations

56A Schedule B entity shall ensure that appropriate authorizations are obtained before beginning a procurement process.

Procurement on behalf of a private organization

57Only those Schedule B entities that are marked with an asterisk in the list of the entities in Schedule B may enter into an agreement under section 16 of the Act with a private organization.

Procuring goods and services valued below specified amounts

2019-20

58A Schedule B entity is not required to procure the following goods and services through a competitive bidding process:

(a) goods that have an estimated value that is less than $100,000 or the lowest applicable threshold value of any relevant trade agreements, whichever is lesser; and

(b) services that have an estimated value that is less than $100,000 or the lowest applicable threshold value of any relevant trade agreements, whichever is lesser.

2019-20; 2022-77

Procuring goods and services valued above amounts referred to in section 58

2019-20

59When a Schedule B entity procures goods or services that have an estimated value above the lowest applicable threshold value of any relevant trade agreements referred to in section 58 or $100,000, whichever is the lesser, the goods or services shall be procured through an open competitive bidding process unless an alternative procurement method is authorized in the circumstances by this Regulation.

2019-20; 2022-77

Authorized procurement methods

2019-20

60So long as a Schedule B entity is not doing so for the purpose of averting competition among prospective suppliers or for the purpose of discriminating against a prospective supplier, the Schedule B entity may use any procurement method authorized by this Regulation if, in response to a competitive bidding process under section 59,

(a) no bid submissions are received or none of the bid submissions is acceptable, or

(b) no prospective suppliers requested participation or no prospective suppliers satisfied the conditions for participation.

2019-20; 2022-77

B

Exemptions

New Brunswick Power Corporation and New Brunswick Energy Marketing Corporation

61The New Brunswick Power Corporation and the New Brunswick Energy Marketing Corporation are exempt from the provisions of the Act and this Regulation with respect to the procurement of the following electric utility-specific goods and services, regardless of their estimated value:

(a) fuel for use in a generating station owned by the New Brunswick Power Corporation;

(b) electrical power;

(c) nuclear class components, materials and related services;

(d) those specialized components, materials and services that relate specifically to the generation, transmission or distribution of electricity;

(e) banking services; and

(f) non-routine capital projects and procurements that have been approved by the New Brunswick Power Corporation’s Board of Directors, including joint ventures, strategic partnerships and financing arrangements with third parties.

New Brunswick Highway Corporation

62(1)The New Brunswick Highway Corporation is exempt from the provisions of the Act and this Regulation with respect to the procurement of goods and services under an agreement made between the Corporation and a project company.

62(2)If the New Brunswick Highway Corporation enters into an agreement or forms a joint venture with another person for the purposes of the New Brunswick Highway Corporation Act, the Act and this Regulation do not apply with respect to further agreements or to the purchase of goods or services made by or other transactions carried out by that other person.

62(3)Despite the exemptions in subsections (1) and (2), the procurement of goods and services by the New Brunswick Highway Corporation shall comply with all applicable trade agreements.

2022-77

New Brunswick Community College / Collège communautaire du Nouveau-Brunswick

63The New Brunswick Community College (NBCC) and the Collège communautaire du Nouveau-Brunswick (CCNB) are not required to procure the following goods through a competitive bidding process if their estimated value is less than $25,000:

(a) school textbooks and textbook materials whether in paper or digital format;

(b) goods, including parts to be used in the repair and overhauling of equipment, that are charged back to the owner of the equipment other than tools or items to be placed in stock;

(c) goods required by students for use during training that are to be sold to the individual students; and

(d) software to be used for educational purposes only.

C

Disqualification of Prospective Suppliers

i

Disqualification

2019-20

Disqualification

2019-20

64(1)If there is supporting evidence, the head of a Schedule B entity or the person responsible for its procurement may disqualify for a period of no more than 24 months a prospective supplier from providing goods and services to the Schedule B entity for the following reasons:

(a) significant or persistent deficiencies in the performance of any substantive requirement or obligation under a prior procurement contract or contracts;

(b) false declarations;

(c) professional misconduct or acts or omissions that adversely reflect on the commercial integrity of the prospective supplier; or

(d) failure to pay taxes.

64(2)If there is supporting evidence, the head of a Schedule B entity or the person responsible for its procurement may disqualify a prospective supplier that has become an insolvent person or a bankrupt within the meaning of the Bankruptcy and Insolvency Act (Canada) from providing goods and services to the Schedule B entity for the period during which the prospective supplier is an insolvent person or a bankrupt, as the case may be.

2019-20; 2022-77

Commencement of disqualification period

2022-77

64.1The period of disqualification under subsection 64(1) begins on the date determined by the head of a Schedule B entity or the person responsible for its procurement.

2022-77

Elements of past performance

65Subject to section 77, a prospective supplier’s performance under a procurement contract that was in force within two years before the coming into force of this Regulation may be taken into account in determining whether the prospective supplier should be disqualified.

2022-77

Conditions precedent

66Before disqualifying a prospective supplier under subsection 64(1), the head of a Schedule B entity or the person responsible for its procurement shall give the prospective supplier notice of the intention to disqualify the prospective supplier, and the notice shall include the following information:

(a) the reasons, with details, for which the prospective supplier is being considered for disqualification;

(b) the intended length of the disqualification;

(c) that the prospective supplier, within 15 days after receiving the notice, may object to the intended disqualification by sending by registered mail a notice of objection to the head of the Schedule B entity or the person responsible for its procurement;

(d) that the prospective supplier has a right to be represented by counsel if the prospective supplier chooses to object to the disqualification; and

(e) that the prospective supplier may present its objection in person or in writing.

2019-20; 2022-77

Objection in writing

67If a prospective supplier chooses to object in writing, the prospective supplier shall include with the notice of objection all the documents in the prospective supplier’s possession that support the objection.

2022-77

Objection in person

68(1)If a prospective supplier chooses to have an objection heard in person, the head of the Schedule B entity or the person responsible for its procurement shall set a date, time and place to hear the prospective supplier’s objection, and the hearing shall occur within 15 days after receipt of the notice of objection.

68(2)Despite subsection (1), the prospective supplier may agree to have its objection heard more than 15 days after receipt of the notice of objection, but the hearing shall be held within 30 days after the receipt of the notice of objection.

2019-20; 2022-77

Decision

69(1)The decision to disqualify a prospective supplier under section 64 shall be in writing and specify the commencement date of the disqualification.

69(2)The decision to disqualify a prospective supplier under subsection 64(1) shall be made

(a) if a notice of objection has not been received, within five days after the period for sending a notice of objection has expired,

(b) if a hearing has been held in accordance with section 68, within 15 days after the hearing, or

(c) if an objection has been made in writing under section 67, within 15 days after the documents supporting the objection are received.

2019-20; 2022-77

Conditions on disqualfiication

70The head of the Schedule B entity or the person responsible for its procurement may impose on a supplier’s disqualification conditions relating to the scope of the disqualification.

2019-20

Decision is final

Repealed: 2022-77

2022-77

71Repealed: 2022-77

2022-77

Judicial review

Repealed: 2022-77

2022-77

72Repealed: 2022-77

2022-77

Automatic reinstatement

2022-77

72.1After the period of disqualification determined under subsection 64(1) by the head of a Schedule B entity or the person responsible for its procurement expires, the prospective supplier is reinstated.

2022-77

Application for reinstatement

2022-77

73(1)A prospective supplier who has been disqualified for more than six months under subsection 64(1) may apply in writing to the head of a Schedule B entity or the person responsible for its procurement to be reinstated

(a) after six months have elapsed from the date of the decision to disqualify the prospective supplier, or

(b) if the prospective supplier is not reinstated under paragraph (a), after six months have elapsed from the date of the decision denying reinstatement.

73(2)A prospective supplier that has been disqualified under subsection 64(2) may apply in writing to the head of a Schedule B entity or the person responsible for its procurement to be reinstated if the prospective supplier is no longer an insolvent person or a bankrupt.

2019-20; 2022-77

Reinstatement

2022-77

74(1)On application under subsection 73(1), the head of a Schedule B entity or the person responsible for its procurement may reinstate a prospective supplier that has been disqualified under subsection 64(1) if the head of a Schedule B entity or the person responsible for its procurement is satisfied that the prospective supplier has taken appropriate corrective measures.

74(2)On application under subsection 73(2), the head of a Schedule B entity or the person responsible for its procurement shall reinstate a prospective supplier that has been disqualified under subsection 64(2) if the head of a Schedule B entity or the person responsible for its procurement is satisfied that the prospective supplier is no longer an insolvent person or a bankrupt.

2019-20; 2022-77

Subsequent applications for reinstatement

Repealed: 2022-77

2022-77

75Repealed: 2022-77

2022-77

Total period of disqualification

Repealed: 2022-77

2022-77

76Repealed: 2022-77

2019-20; 2022-77

Subsequent disqualification

77(1)A prospective supplier may be disqualified under section 64 more than once.

77(2)The facts that gave rise to a prospective supplier’s previous disqualification may not be considered with respect to a subsequent disqualification, but the fact that the prospective supplier has been previously disqualified may be considered.

Subsequent disqualification - period of disqualification

Repealed: 2022-77

2022-77

78Repealed: 2022-77

2019-20; 2022-77

Disqualification during performance of a procurement contract

79(1)The head of a Schedule B entity or the person responsible for its procurement may disqualify a prospective supplier under section 64 despite that the supplier is in the course of fulfilling a procurement contract for the entity.

79(2)If a prospective supplier is disqualified in the circumstances set out in subsection (1), the head of the Schedule B entity or the person responsible for its procurement may cancel any existing procurement contract that supplier has with the Schedule B entity unless it would be too costly for or otherwise detrimental to the Schedule B entity.

79(3)If a procurement contract is not cancelled under subsection (2), the head of the Schedule B entity or the person responsible for its procurement may take those oversight measures with respect to the contract that the head of the Schedule B entity or the person considers appropriate, including any of the following:

(a) inspections;

(b) measures to prevent delays; and

(c) close tracking of the stages or different aspects of the contract.

2022-77

Disqualification during procurement process

80The head of a Schedule B entity or the person responsible for its procurement shall not award a procurement contract to a prospective supplier who becomes disqualified under section 64 during the procurement process with respect to that contract.

Prospective supplier not an individual

81(1)A prospective supplier that is not an individual is deemed to be disqualified under section 64 when a person who has a controlling interest in that prospective supplier is disqualified under section 64.

81(2)A prospective supplier that is not an individual is deemed to be disqualified under section 64 when that prospective supplier has a controlling interest in another prospective supplier that is disqualified under section 64.

2022-77

ii

Disqualification for Offences

Automatic disqualification

82A prospective supplier who is guilty of an offence listed in Schedule C is disqualified from providing goods and services to Schedule B entities for the corresponding period indicated in Schedule C.

Guilty verdict during performance of procurement contract

83(1)If a supplier is found guilty of an offence referred to in section 82, the head of a Schedule B entity or the person responsible for its procurement shall cancel any existing procurement contracts that supplier has with respect to the Schedule B entity unless to do so would be too costly for or otherwise detrimental to the Schedule B entity.

83(2)If a procurement contract is not cancelled under subsection (1), the head of the Schedule B entity or the person responsible for its procurement may take those oversight measures with respect to the contract that the head of the Schedule B entity or the person considers appropriate, including any of the following:

(a) inspections;

(b) measures to prevent delays; and

(c) close tracking of the stages or different aspects of the contract.

2022-77

Guilty verdict during procurement process

84The head of a Schedule B entity or the person responsible for its procurement shall not award a procurement contract to a prospective supplier who becomes disqualified under section 82 during the procurement process with respect to that contract.

Commencement of the disqualification period

85The period of disqualification under section 82 begins on the expiration of the time period to file an appeal with respect to the verdict that gave rise to the disqualification.

2022-77

Disqualification not retrospective

86Only an offence committed after this Regulation comes into force shall result in a disqualification under section 82.

4

PROCUREMENT - GENERAL PROVISIONS

A

Procurement Rules - Competitive Bidding Process

i

Solicitation for Tenders

Establishment of prequalification list

87(1) A procuring entity may establish a prequalification list of goods, services or prospective suppliers to be used in a future competitive bidding process, and the list shall be established in accordance with the provisions of this Regulation applicable to a competitive bidding process.

87(2)If a procuring entity intends to use a prequalification list to procure goods or services for which the procurement is subject to a trade agreement, an open competitive bidding process shall be used to establish the list.

87(3)In addition to any other requirements under this Regulation, the solicitation documents for the establishment of a prequalification list shall include the following information:

(a) the period for which the list is to be established, or if the period is not specified, an indication of the method by which the procuring entity shall notify prospective suppliers of the termination of the period;

(b) the Schedule A entities, the Schedule B entities, the public bodies and the private organizations that may use the list;

(b.1) the criteria that will be used to prequalify prospective suppliers;

(b.2) if a limited number of prospective suppliers on the prequalification list may submit bid submissions, information concerning the limitation on the number of prospective suppliers and the criteria for selecting the limited number of prospective suppliers; and

(c) any other conditions governing the use of the list.

87(4)Subject to subsection (5), the solicitation notice to establish a prequalification list shall be published at least annually and in accordance with section 89.

87(5)If a prequalification list is to be valid for a period of not more than three years, the procuring entity shall publish the solicitation notice to establish the prequalification list on the New Brunswick Opportunities Network at least once at the beginning of the period for which the list is to be established, and the solicitation notice shall contain the following information:

(a) the period for which the list is to be established;

(b) a statement that no further solicitation notices will be published; and

(c) the information set out in section 89.

2019-20; 2022-77

Use of prequalification list

88(1)A prequalification list is valid only for the period indicated in the solicitation documents, or if no period is indicated in the solicitation documents, for the period established by the procuring entity.

88(2)A procuring entity may divide into categories the goods, services and prospective suppliers that have been prequalified.

88(3)When a prequalification list has been established, the procuring entity shall restrict the competitive bidding process to the following:

(a) the prospective suppliers that are on the list, or an applicable category of the list;

(b) the period for which the list was established; and

(c) the procurement of the goods and services for which the list was established.

88(4)The competitive bidding process of prospective suppliers on a prequalification list, or a category of the list, shall be done in the one of the following manners:

(a) a limited competitive bidding process; or

(b) by publishing a public advertisement that indicates that participation in the bidding process is restricted to prospective suppliers that have been prequalified.

88(5)When a procuring entity procures goods or services for which the procurement is subject to a trade agreement and for which a prequalification list has been established, the following prospective suppliers may submit bid submissions:

(a) all the prospective suppliers that are on the list or in an applicable category of the list; or

(b) if the solicitation documents for the establishment of the prequalification list include information concerning a limitation on the number of prospective suppliers that will be invited to submit bid submissions and the criteria for selecting the limited number of prospective suppliers, a limited number of prospective suppliers.

88(6)Repealed: 2022-77

2019-20; 2022-77

Solicitation notice

89When a solicitation notice is publicly advertised, the procuring entity shall publish the notice on the New Brunswick Opportunities Network for the minimum solicitation period under section 96, and the notice shall contain the following information:

(a) the solicitation number;

(b) a brief description of the goods or services being procured, including the nature and the quantity, or estimated quantity, of the goods or services being procured, unless that information is included in the solicitation documents;

(c) the name and address of the procuring entity and other information necessary to contact the procuring entity and obtain relevant solicitation documents, and the costs, if any, for the solicitation documents and the terms of payment;

(c.1) a list and brief description of any conditions for the participation of prospective suppliers, including any requirements for specific documents or certifications to be provided by prospective suppliers, unless those requirements are included in solicitation documents;

(c.2) the period during which the goods or services are to be delivered, or the duration of the procurement contract;

(c.3) a description of any options, unless those options are included in solicitation documents;

(c.4) the procurement method that will be used, and whether the procurement will involve negotiation or electronic auction;

(c.5) the language or languages in which bids or responses to requests for prequalification may be submitted, if they may be submitted in a language other than that of the solicitation notice;

(d) Repealed: 2019-20

(e) the location where a bid submission shall be submitted;

(f) the time and date of the closure of the solicitation period;

(g) the date, time and location that bid submissions are to be opened, if the submissions are to be publicly opened.

2019-20; 2022-77

Trade agreements

2022-77

90For the procurement of goods or services that are subject to a trade agreement, the solicitation notice shall include the name of the trade agreement and the relevant chapter number in the trade agreement.

2022-77

Notice of planned procurement

91(1)A procuring entity may publish notice of its future procurement plans, and the notice shall

(a) be published as early as possible in the fiscal year, and

(b) be posted on the New Brunswick Opportunities Network for a minimum of 35 days and not more than 12 months before the solicitation notice is issued.

91(2)The notice of planned procurement shall include the following information:

(a) the subject matter of the procurement; and

(b) the planned date of the publication of the solicitation notice.

Official solicitation documents

2022-77

92(1)The official solicitation documents shall be the following:

(a) for a Schedule A entity, the documents specified by the Minister; and

(b) for a Schedule B entity, the documents specified by the head of the Schedule B entity or the person responsible for its procurement.

92(2)The official solicitation documents may be in an electronic format.

2022-77

Same information to all

93All prospective suppliers shall be provided with the same information for preparing bid submissions, and the information provided shall be adequate for the preparation of a bid submission.

2022-77

Fair, equal and equitable treatment

94(1)All prospective suppliers shall be treated fairly, equally and equitably throughout the competitive bidding process unless the solicitation documents state otherwise.

94(2)If the solicitation documents state that a class of prospective suppliers may be given preferential treatment in a manner authorized by this Regulation, the procuring entity shall treat all prospective suppliers in that class in a manner that is fair, equal and equitable.

2022-77

Criteria in addition to price

95If a procuring entity intends to evaluate submissions in a competitive bidding process on criteria in addition to price, the procuring entity shall indicate clearly in the solicitation documents the criteria to be used and the method by which the bid submissions will be evaluated, including the relative weight to be assigned to each criteria.

2022-77

Minimum solicitation period - open competitive bidding

96(1)The minimum solicitation period for an open competitive bidding process is ten days, unless

(a) a longer period is required under a trade agreement that applies to the procurement, or

(b) the procuring entity determines that a longer period is required for prospective suppliers to prepare their bid submissions.

96(2)When determining the length of a solicitation period under paragraph (1)(b), a procuring entity shall take into consideration any factor it considers relevant, including:

(a) the nature and complexity of the procurement;

(b) the extent of subcontracting anticipated; and

(c) the time necessary for delivering the solicitation documents by non-electronic means.

2019-20; 2022-77

Solicitation period - notice of procurement

Repealed: 2019-20

2019-20

97Repealed: 2019-20

2019-20

Solicitation period - limited competitive bidding

98If a procuring entity is entitled to proceed with a procurement by a limited competitive bidding process, there is no prescribed minimum solicitation period, but the procuring entity shall give prospective suppliers sufficient time to prepare their bid submissions.

Amendment of solicitation documents

99(1)At any time before the closing of the solicitation period, a procuring entity, for any reason, may modify the solicitation documents by issuing an amendment, and the amendment may be initiated by the procuring entity or may be made as the result of a request for clarification by a prospective supplier.

99(2) The amendment shall be communicated promptly and in the same manner as the original solicitation documents, and, taking into consideration the nature of the amendment, the procuring entity shall provide prospective suppliers with sufficient time to modify their submissions if necessary.

99(3)In the case of a publicly advertised solicitation, notification of the amendment shall be posted also on the New Brunswick Opportunities Network.

2022-77

Shortening of solicitation period

100Subject to section 96, the solicitation period for a competitive bidding process may be shortened in either of the following circumstances:

(a) it is evident that the original closing date was incorrect; or

(b) the need for the goods or services being procured has become more immediate.

2019-20

Extension of solicitation period

101The solicitation period for a competitive bidding process may be extended for any of the following reasons:

(a) the original solicitation period is clearly of an inadequate length to prepare a bid submission;

(b) prospective suppliers require additional time to prepare their bid submissions as the result of an amendment to the solicitation documents; or

(c) the procuring entity considers it appropriate to extend the solicitation period in the circumstances.

Request for clarification

102A prospective supplier may request, in writing, a clarification of the solicitation documents from the procuring entity within the period of time set out in the solicitation documents for requesting a clarification.

2019-20

Response to clarification request

103 A procuring entity shall respond to a written request made under section 102 within such reasonable time as to permit prospective suppliers to submit their bid submissions.

Communication of clarifying information

104(1)Without identifying the source of a request for clarification, a procuring entity shall communicate the clarifying information to all prospective suppliers at the same time as providing a response under section 103 and in the same manner as the original solicitation documents.

104(2)In the case of a publicly advertised solicitation, notification of the clarification shall be posted also on the New Brunswick Opportunities Network.

2022-77

ii

Bid Submissions

Bid submissions

105(1)A prospective supplier shall ensure that its bid submission

(a) is legible and properly completed,

(b) contains the proper solicitation number, and

(c) is submitted to the procuring entity in accordance with the requirements set out in the solicitation documents by the date and time specified in those documents.

105(2)A bid submission received by a procuring entity in a sealed envelope that does not bear the solicitation number on the envelope shall be opened by the procuring entity in order to match it to a competitive bidding process, and, in so doing, the procuring entity shall take all reasonable measures to preserve the confidentiality of the envelope’s contents.

2022-77

Amending bid submissions

106(1)A prospective supplier may amend a bid submission that has been submitted to a procuring entity if the amendment is delivered to the location specified in the solicitation documents by the date and time specified in those documents.

106(2)A prospective supplier shall ensure that an amendment to its bid submission

(a) is signed by the person who signed the original bid submission or by a person authorized to sign on its behalf, and

(b) clearly indicates the solicitation number applicable to the bid submission being amended.

106(3)For the purposes of this Regulation, a bid submission includes any amendments to the bid submission received by the procuring entity that comply with this section.

2022-77

iii

Receipt of Bid Submissions

Date and time of official receipt

107(1)Subject to subsection (2), on receipt of a bid submission under section 105, a procuring entity shall stamp the bid submission with the date and time of its receipt, and this shall be the official date and time of receipt of the bid submission, which shall be stored in a secure place until the bid submissions are opened.

107(2)If a procuring entity receives a bid submission through the New Brunswick Opportunities Network or another approved electronic tendering system, the official date and time of receipt of the bid submission shall be that recorded by the system.

2022-77

Limit to confidentiality

108(1)A procuring entity shall take all reasonable measures to preserve the confidentiality of a bid submission received by fax transmission.

108(2)The confidentiality of information contained in a bid submission received by fax transmission is not assured, and the procuring entity shall not be held liable if any such information becomes known inadvertently.

2022-77

Closure of solicitation period

2022-77

109A solicitation period shall close at the date and time indicated in the solicitation documents, and a bid submission received after that date and time is a late bid submission.

2022-77

Withdrawal of bid submissions

110A prospective supplier may not withdraw a bid submission after the closure of the solicitation period set out in the solicitation documents unless the authority to do so was disclosed in the solicitation documents.

2022-77

Late bid submissions

111(1)Subject to subsection (2), a late bid submission

(a) shall be stamped in accordance with section 107,

(b) shall not be accepted in the competitive bidding process, and

(c) if possible, shall be returned unopened to the prospective supplier.

111(2)With the approval of the Minister or the head of a Schedule B entity, as the case may be, a procuring entity may accept a late bid submission if the fault for the late bid submission is solely attributable to the procuring entity.

111(3)If the Minister or the head of a Schedule B entity approves the acceptance of a late bid submission, all documents related to the approval shall be maintained in the procurement file.

2022-77

Bid submissions received by fax transmission

2022-77

112(1)If a procuring entity receives a bid submission by fax transmission, only the pages that are fully transmitted by the closure of the solicitation period may be accepted in the competitive bidding process, and all the pages received after the closure of the solicitation period shall be rejected.

112(2)A bid submission received by fax transmission shall be rejected if all the information required in the bid submission is not transmitted by the closure of the solicitation period.

112(3)If, during the evaluation of a bid submission, it is determined that any required information was not received by the closure of the solicitation period, the procuring entity shall reject the bid submission.

2022-77

iv

Opening of Bid Submissions

Who opens bid submissions

113 Regardless of whether bid submissions are to be opened in public, only the person designated by the procuring entity to open the bid submissions may open them.

Public opening of bid submissions

114 If bid submissions are to be opened in public, the procuring entity shall open them at the location, date and time specified in the solicitation documents.

Rejection of bid submissions

115(1)Subject to section 116.1, the person designated to open bid submissions shall reject a bid submission for any of the following reasons:

(a) the bid submission is not signed;

(b) the bid submission is not accompanied by a bid bond or a bid security deposit in the form and in the amount required by the solicitation documents;

(c) if more than one item is being procured, the bid submission does not contain a total price if one was required by the solicitation documents; or

(d) the bid submission is illegible.

115(2)If a prospective supplier submits more than one bid submission and they are not marked as alternative submissions, the last bid submission received prior to closure of the solicitation period shall be accepted, and all other bid submissions from that prospective supplier shall be rejected.

2019-20; 2022-77

Decision to reject final

Repealed: 2022-77

2022-77

116Repealed: 2022-77

2022-77

Rectification of bid submission

2019-20

116.1If the authority to allow the rectification of a bid submission was disclosed in the solicitation documents and the rectification would not give a prospective supplier an unfair advantage over other prospective suppliers who submitted bids, a procuring entity, in accordance with that authority, may allow the prospective supplier whose bid submission would otherwise be rejected for the reasons set out in subsection 115(1) to rectify the bid submission by the date and time specified in the solicitation documents.

2019-20

No award on opening

117A procuring entity shall not award a procurement contract at the time that bid submissions are opened.

Disclosure of information

118(1)In the case of a competitive bidding process based on price, a procuring entity may, after the opening of bid submissions and before the award of a procurement contract, disclose the names of the prospective suppliers and, if a total price was required by the solicitation documents, the total price of their respective bid submissions.

118(2)In the case of a competitive bidding process based on points, a procuring entity may, after the opening of bid submissions and before the award of a procurement contract, disclose the names of the prospective suppliers.

2022-77

Examination for compliance

119(1)Following the opening of bid submissions, a bid submission shall be evaluated to determine if it complies with the mandatory requirements of the solicitation documents and shall be rejected if it does not comply.

119(2)A bid submission may be found not to be in compliance for reasons that include, but are not limited to, the following:

(a) the submission contains substantive qualifications or is subject to significant conditions that are incompatible with the terms of the solicitation documents;

(b) the submission is from a disqualified prospective supplier;

(c) the submission does not satisfy the mandatory requirements of the solicitation documents;

(d) the submission contains a change in price that was not initialled by the person who signed the submission; or

(e) the procuring entity determines that the information submitted with respect to the qualifications of the prospective supplier are false.

2019-20; 2022-77

Minor non-compliance

120(1)Despite section 119, if the authority to waive a minor non-compliance with the mandatory requirements of the solicitation documents was disclosed in the solicitation documents, a procuring entity, in accordance with that authority, may waive the minor non-compliance and accept the bid submission.

120(2)For the purposes of subsection (1), a failure to comply with the mandatory requirements of the solicitation documents is a minor non-compliance if it

(a) affects the form of the bid submission, rather than its substance,

(b) does not affect the bid’s price, delivery, quality or quantity, and

(c) if waived, would not give the prospective supplier an unfair advantage over other prospective suppliers who submitted bids.

v

Evaluation of Bids

Evaluation standard

121(1)A procuring entity shall objectively evaluate a bid submission accepted into the competitive bidding process and shall consider all bid submissions equally, fairly and honestly.

121(2)All bid submissions accepted in the same competitive bidding process shall be evaluated by the same individual or group of individuals.

2022-77

Evaluation according to solicitation documents

122When evaluating a bid submission and determining the successful supplier, a procuring entity shall use only those criteria, weighting and procedures set out in the solicitation documents and shall apply those criteria and procedures only in the manner set out in the solicitation documents.

2022-77

Discrepancy in price or miscalculation

2022-77

123If, in a bid submission, there is a discrepancy or miscalculation between the stated unit price and the stated total price, the procuring entity shall use the unit price to calculate the total price for evaluation purposes.

2022-77

Abnormally low price

124(1)A procuring entity may reject a bid submission if it determines that the bid price, in combination with other aspects of the submission, is so abnormally low in relation to the subject matter of the procurement that it raises concerns regarding the prospective supplier’s ability to perform the procurement contract.

124(2)A procuring entity may act under subsection (1) only if the following conditions have been met:

(a) the procuring entity has requested clarification of its bid from the prospective supplier; and

(b) after considering the clarifying information provided by the prospective supplier within the time period provided for doing so, the procuring entity’s concerns with the bid submission remain.

124(3)The request for clarification under subsection (2) shall state when the information shall be received by the procuring entity, and only clarifying information received by that date may be considered under that subsection.

124(4)All communication under this section between a procuring entity and a prospective supplier shall be in writing.

124(5)The decision to reject a bid submission under this section shall be documented in the procurement file, including the reasons for rejecting the submission, and all communication between the procuring entity and the prospective supplier shall be retained in that file.

124(6)A procuring entity shall promptly communicate to the prospective supplier the decision to reject a bid submission under this section.

Clarification of bids

125(1)A procuring entity may request clarification of a bid submission from a prospective supplier.

125(2)No changes to the substance of a bid submission may be made, proposed or allowed following a request for clarification under this section.

Cancellation of a competitive bidding process

126A procuring entity may cancel a competitive bidding process and decline to enter into a procurement contract in any of the following circumstances:

(a) none of the bid submissions are acceptable;

(b) the goods or services that were the subject of the competitive bidding process are no longer required; or

(c) a reason set out in the solicitation documents if the authority to cancel the procurement was disclosed in those documents.

Negotiations during procurement process

127(1)In the context of a competitive bidding process, the terms of a procurement contract may be negotiated between a procuring entity and a prospective supplier if the following conditions are met:

(a) the authority to negotiate is set out in the solicitation documents, including the negotiation process to be used and the conditions under which negotiations will take place;

(a.1) it appears from the procuring entity’s evaluation that no bid submission is obviously the most advantageous based on the criteria set out in the solicitation documents;

(b) the negotiations are confidential, and the procuring entity shall not disclose any information with respect to the bid submission of another prospective supplier;

(c) the procuring entity may neither give an unfair advantage to, nor discriminate against, a prospective supplier in the course of negotiations; and

(d) prospective suppliers are eliminated from the process based on the criteria set out in the solicitation documents.

127(2)If negotiations are conducted concurrently with multiple prospective suppliers, the procuring entity shall provide a common deadline for the participating prospective suppliers to submit any new or revised bid submissions.

127(3)If negotiations are conducted consecutively with one prospective supplier at a time, the procuring entity shall provide a deadline for the participating prospective supplier to submit any new or revised bid submissions prior to proceeding to negotiate with the next ranked prospective supplier.

2019-20

vi

Preferential Treatment

Conditions precedent

128(1)In order to apply preferential treatment in the evaluation of bid submissions, the solicitation documents shall indicate clearly that preferential treatment may be applied and shall set out the method to be used in applying the preferential treatment.

128(2)In addition to the requirements of subsection (1), if preferential treatment is to be given for Canadian value-added, the solicitation documents shall indicate the level of preference to be used in the evaluation and the rules applicable to determine the extent of Canadian value-added.

2022-77

Prospective supplier may be advantaged only once

129A prospective supplier may be advantaged by preferential treatment only once during a competitive bidding process, regardless of whether the competitive bidding process is completed in stages or multiple parts.

2022-77

Preferential treatment permitted below trade agreement thresholds

2022-77

130 If the estimated value of the goods or services to be procured is below the lowest applicable threshold value of any relevant trade agreements, a procuring entity may give preferential treatment to a New Brunswick supplier or an Atlantic Canadian supplier.

2022-77

Application of preferential treatment under section 130

2022-77

131In the application of preferential treatment in accordance with section 130, the procuring entity shall observe the following order of priority, regardless of whether bid submissions are evaluated based on price or evaluated on a point system:

(a) firstly, New Brunswick manufacturers if the goods to be procured are manufactured in New Brunswick;

(b) secondly, New Brunswick vendors; and

(c) thirdly, Atlantic Canadian suppliers.

2022-77

Preferential treatment permitted for New Brunswick suppliers

2022-77

132A procuring entity may give preferential treatment to a New Brunswick supplier for the procurement of goods or services if the applicable trade agreements provide an exception for those goods or services or those goods or services are not subject to trade agreements.

2022-77

Evaluations based on price

2022-77

133(1)When bid submissions are evaluated on price, a procuring entity may give preferential treatment under section 132 if the bid, when compared to the lowest acceptable bid, is within the applicable range set out in section 135.

133(2)Prospective suppliers given preferential treatment under subsection (1) shall be ranked according to the order of priority set out in section 136.

2022-77

Evaluations based on points

2022-77

134(1)When bid submissions are evaluated on a point system, a procuring entity may give preferential treatment under section 132 if the price component of a bid submission, when compared with the price component of the bid submission that receives the highest score before preferential treatment is applied, is within the applicable range set out in section 135.

134(2)The additional points that may be given as preferential treatment under this section shall be equal to no more than 5% of the total points that a bid is otherwise eligible to receive, and the percentage awarded to each class of prospective supplier shall be determined in accordance with the order of priority in section 136.

134(3)The maximum number of points that may be given to a manufacturer under subsection (2) may be given to a vendor if no bid from a manufacturer has been retained for preferential treatment.

2022-77

Price Ranges

135For the the purposes of sections 133 and 134, the applicable ranges are the following:

(a) for a procurement contract with an estimated value of $250,000 or less, a variation of 10% or $15,000, whichever is less;

(b) for a procurement contract with an estimated value greater than $250,000 and less than $1,000,000, a variation of 5% or $25,000, whichever is less;

(c) for a procurement contract with an estimated value of $1,000,000 or greater, but less than $5,000,000, a variation of 2.5% or $100,000, whichever is less;

(d) for a procurement contract with an estimated value of $5,000,000 or greater, but less than $10,000,000, a variation of 2.5% or $200,000, whichever is less; and

(e) for a procurement contract with an estimated value of $10,000,000 or greater, a variation of 2.5% or $400,000, whichever is less.

Order of priority

136For the purposes of sections 133 and 134, the order of priority is the following:

(a) firstly, New Brunswick manufacturers if the goods to be procured are manufactured in New Brunswick; and

(b) secondly, New Brunswick vendors.

Preferential Treatment for Canadian value-added

137(1)A procuring entity may give preferential treatment for Canadian value-added, and the amount of the preferential treatment shall be no greater than 10%.

137(2)When the procurement of goods and services is subject to only one international trade agreement, preferential treatment may be given under subsection (1) only if the estimated value of the goods or services is less than the threshold value of that trade agreement.

137(3)When the procurement of goods and services is subject to more than one international trade agreement, preferential treatment may be given under subsection (1) only if the estimated value of the goods or services is less than the lowest applicable threshold value of the relevant trade agreements.

2019-20; 2022-77

vii

Awarding Procurement Contract

Authorization for procurement $500,000 or greater

138(1)When the value of a procurement contract is $500,000 or greater, the Minister or the head of a Schedule B entity, as the case may be, shall approve the awarding of the contract.

138(2)The authority of the Minister under this section may not be delegated to another person.

Award - evaluations on price

139(1)When bid submissions are evaluated on price, the procuring entity shall award the procurement contract to the prospective supplier with the compliant bid submission that has the lowest price, subject to any preferential treatment given under this Regulation.

139(2)A procuring entity may award a procurement contract to more than one prospective supplier if that possibility was indicated in the solicitation documents, and, in that case, the procurement contracts shall be awarded to the prospective suppliers with the compliant bid submissions that have the lowest prices, subject to any preferential treatment given under this Regulation.

139(3)For the purposes of this section, the price of a good or service includes the total cost of ownership of the good or service or the value of the return on investment to the procuring entity if the solicitation documents disclosed that these factors would be considered when evaluating bid submissions.

2022-77

Award - evaluations on points

140(1)When bid submissions are evaluated on a point system, the procuring entity shall award the procurement contract to the prospective supplier with the compliant bid submission that receives the highest score.

140(2)A procuring entity may award a procurement contract to more than one prospective supplier if that possibility was indicated in the solicitation documents, and, in that case, the procurement contracts shall be awarded to the prospective suppliers with the compliant bid submissions that have the highest scores.

140(3)Repealed: 2022-77

2022-77

Prequalification list - evaluations on points

141When bid submissions for inclusion on a prequalification list are evaluated on a point system, the procuring entity shall place on the prequalification list

(a) all prospective suppliers with compliant bid submissions that meet the minimum acceptable score indicated in the solicitation documents, or

(b) a limited number of prospective suppliers with compliant bid submissions that have the highest scores if the authority to limit the number of prospective suppliers based on their score was disclosed in the solicitation documents.

2019-20

Award - Tie among bid submissions

142After bid submissions have been evaluated, if there is a tie among two or more bid submissions, the procuring entity shall select a fair and transparent method for awarding a procurement contract under section 139 or 140.

Award documents

143(1)Following the receipt of any required approvals, a procuring entity shall issue award documents to the successful supplier or suppliers under section 139 or 140, as the case may be, and the documents shall include all information pertinent to the procurement.

143(2)A procuring entity may only amend or alter award documents issued under this section in the following circumstances:

(a) on the agreement of the supplier and the procuring entity, to make an addition to or deletion from the procurement contract with respect to a matter not dealt with in the original or modified solicitation documents, as the case may be, due to an error or oversight;

(b) to correct a clerical error in the award documents to render the award documents consistent with the supplier’s bid submission; or

(c) on the agreement of the supplier and the procuring entity, to renew the procurement contract if the solicitation documents included a renewal option.

2022-77

Contract substantially similar

144The terms of a procurement contract awarded following a competitive bidding process shall be substantially the same as those terms in the solicitation documents.

2022-77

Notice of award

145(1)When a procuring entity procures goods and services for which the procurement is subject to a trade agreement and the procurement contract was awarded following a competitive bidding process, the procuring entity shall, after awarding a procurement contract under section 139 or 140, post an award notice on the New Brunswick Opportunities Network.

145(2)The award notice shall contain the following information:

(a) the name and address of the procuring entity;

(b) the solicitation number;

(c) a description of the goods and services procured;

(d) the name and address of the successful supplier;

(d.1) if an alternative procurement method that is authorized in the circumstances by this Regulation was used to procure the goods and services, the reasons for using the alternative procurement method;

(e) the value of the awarded procurement contract; and

(f) the date the procurement contract was awarded.

145(3)A procuring entity shall post an award notice within 72 days after the procurement contract is awarded.

2019-20; 2022-77

viii

Disclosure Following Award

Disclosure - competitive bidding process

146When a procurement contract has been awarded following a competitive bidding process, a procuring entity may disclose the name of the successful supplier and the total value of the contract.

Disclosure - procurement by mutual agreement

147When a procurement contract has been entered into by mutual agreement under section 156, the name of the supplier under the contract and the total value of the contract shall be disclosed if it is required under an applicable trade agreement.

2022-77

Debriefing

2022-77

148(1)On the request of an unsuccessful supplier following the award of a procurement contract, the procuring entity shall debrief the unsuccessful supplier by providing feedback on the evaluation of its bid submission.

148(2)During a debriefing, a procuring entity shall not reveal the following information, except as otherwise provided for in this Regulation:

(a) details concerning another prospective supplier’s bid submission, including the successful supplier’s bid submission; and

(b) the score and ranking of another prospective supplier’s bid submission, including the successful supplier’s bid submission.

2022-77

Confidentiality

149Except as otherwise required by law, a procuring entity shall not disclose any information acquired during a procurement process if disclosure of the information would do any of the following:

(a) endanger the security of the Province or the well-being of its residents;

(b) interfere with the integrity of the procurement process;

(c) be contrary to the law or otherwise interfere with the enforcement of the law;

(d) reveal a trade secret or business practice of or otherwise prejudice the legitimate commercial interests of a supplier or prospective supplier; or

(e) otherwise impede fair competition.

ix

Standing Offer Agreements

Establishment of standing offer agreement

150(1)A procuring entity may enter into a standing offer agreement with a supplier, and the agreement shall be entered into following a competitive bidding process conducted in accordance with this Regulation.

150(2)A procuring entity that intends to enter into a standing offer agreement contract to procure goods or services for which the procurement is subject to a trade agreement shall procure them through an open competitive bidding process.

150(3)In addition to any other requirements under this Regulation, the solicitation documents for a standing offer agreement shall include the following information:

(a) the period for which the agreement will be valid;

(a.1) a statement as to how subsequent purchases will be made from the supplier under the agreement;

(b) the terms and conditions of use of the agreement; and

(c) the Schedule A entities, the Schedule B entities, the jurisdictions, the public bodies and the private organizations that may procure under the agreement.

2019-20; 2022-77

Use of standing offer agreement

151(1)A standing offer agreement is valid only for the period indicated in the solicitation documents.

151(2)Only a Schedule A entity, a Schedule B entity, a jurisdiction, a public body or a private organization identified in a standing offer agreement may procure under the agreement.

2019-20

B

Alternative Procurement Methods

Limited competitive bidding - eligible goods and services

152A procuring entity may use a limited competitive bidding process to procure the following goods and services:

(a) goods intended for resale to the public;

(b) goods or services procured on behalf of an entity that is subject to neither the Act nor a trade agreement;

(c) goods or services procured from a philanthropic institution or goods manufactured by or services provided by incarcerated persons or persons with disabilities;

(d) goods that are legally restricted from moving interprovincially, if the restriction is consistent with applicable trade agreements;

(e) Repealed: 2019-20

(f) financial services respecting management of a Schedule A entity’s or a Schedule B entity’s financial assets and liabilities, including treasury operations and ancillary advisory and information services, regardless of whether they are delivered by a financial institution;

(g) health services and social services;

(h) advertising and public relation services;

(i) goods or services procured from a Schedule A entity, a Schedule B entity, a government enterprise, another jurisdiction or a public body;

(i.1) fiscal agency or depository services;

(i.2) liquidation and management services procured on behalf of a regulated financial institution;

(i.3) services related to the sale, redemption, and distribution of the public debt of the Province or any other province or territory of Canada, including loans, bonds, debentures, notes, interest-bearing and non-interest-bearing treasury bills, certificates of indebtedness and any other securities representing part of the public debt of the Province or another province or territory of Canada; and

(j) Repealed: 2019-20

(k) Repealed: 2019-20

(l) goods and services related to culture or cultural industries.

2019-20; 2022-64; 2022-77

Limited competitive bidding - international trade agreements

2022-77

153(1)A procuring entity may use a limited competitive bidding process to procure the following goods and services:

(a) if the procuring entity operates a sporting or convention facility, goods or services procured in order to comply with an agreement that is incompatible with a trade agreement and that was entered into with an entity that is not subject to a trade agreement;

(b) goods and services procured from a non-profit organization, other than a good or service referred to in paragraph 152(c);

(c) goods procured for representational or promotional purposes;

(d) services procured for representational or promotional purposes outside the Province;

(d.1) transportation services provided by locally owned trucks for hauling aggregate on highway construction projects;

(d.2) construction materials if it can be demonstrated that transportation costs or technical considerations impose geographical limits on the available supply base, specifically in the case of sand, stone, gravel, asphalt compound and premixed concrete used in the construction or repair of roads;

(d.3) marketing management consulting services;

(d.4) local food;

(d.5) goods or services financed primarily from donations; and

(e) goods and services that are strictly necessary and, for reasons of urgency brought about by an event unforeseeable by the following entities, cannot be obtained in a timely manner through an open competitive bidding process:

(i) if the Minister procures the goods and services on behalf of a Schedule A entity, the Schedule A entity;

(ii) if the Minister procures the goods and services on behalf of a Schedule B entity, the Schedule B entity;

(iii) if a Schedule B entity procures the goods and services for itself, the Schedule B entity;

(iv) if a Schedule B entity procures the goods and services on behalf of another Schedule B entity, the other Schedule B entity; or

(v) if a Schedule B entity procures the goods and services on behalf of the Minister, the Minister.

153(2)When the procurement of a good or service is subject to only one international trade agreement, the estimated value of the good or service referred to in subsection (1) shall be less than the threshold value of the trade agreement.

153(3)When the procurement of a good or service is subject to more than one international trade agreement, the estimated value of the good or service referred to in subsection (1) shall be less than the lowest applicable threshold value of the relevant trade agreements.

2019-20; 2022-77

Procurement restricted to specific product

154(1)In order to ensure compatibility with existing goods, a procuring entity may restrict a solicitation for submissions to a specific product without the possibility of substitution and, despite sections 152 and 153, when doing so shall use an open competitive bidding process.

154(2)Repealed: 2019-20

2019-20

Procurement restricted to Canadian goods, Canadian services or Canadian suppliers

155(1)So long as a procuring entity is not doing so for the purpose of averting competition among Canadian suppliers or for the purpose of discriminating against Canadian goods, services or suppliers, a procuring entity may use a limited competitive bidding process to restrict procurement to Canadian goods, services or suppliers.

155(2)When the procurement of a good or service is subject to only one international trade agreement, the estimated value of the good or service referred to in subsection (1) shall be less than the threshold value of the trade agreement.

155(3)When the procurement of a good or service is subject to more than one international trade agreement, the estimated value of the good or service referred to in subsection (1) shall be less than the lowest applicable threshold value of the relevant trade agreements.

2019-20; 2022-77

Mutual agreement if only one supplier

156A procuring entity may enter into a procurement contract with a prospective supplier by mutual agreement if no reasonable alternative or substitute goods or services exist and only one prospective supplier is able to meet the procurement requirements in any of the following circumstances:

(a) to recognize exclusive rights, such as exclusive licences or copyright or patent rights;

(b) there is an absence of competition for technical reasons;

(c) the supply of the good or service is controlled by a supplier that is a statutory monopoly;

(d) Repealed: 2019-20

(e) the procuring entity requires work to be performed on or about a leased building that may be performed only by the lessor;

(f) the procuring entity requires work to be performed on property by a contractor according to the provisions of a warranty or guarantee with respect to the property or with respect to the original work of the contractor; or

(g) Repealed: 2019-20

(h) Repealed: 2019-20

(i) the procurement of an original work of art.

2019-20

Mutual agreement if only one supplier - international trade agreements

2022-77

157(1)A procuring entity may enter into a procurement contract with a prospective supplier by mutual agreement if only one prospective supplier is able to meet the procurement requirements in any of the following circumstances:

(a) Repealed: 2019-20

(b) the procurement contract is for subscriptions to newspapers, magazines or other periodicals; or

(c) to ensure compatibility with existing goods, or to maintain specialized goods that must be maintained by the manufacturer of the goods or its representative.

157(2)When the procurement of a good or service is subject to only one international trade agreement, the estimated value of the good or service referred to in subsection (1) shall be less than the threshold value of the trade agreement.

157(3)When the procurement of a good or service is subject to more than one international trade agreement, the estimated value of the good or service referred to in subsection (1) shall be less than the lowest applicable threshold value of the relevant trade agreements.

2019-20; 2022-77

ACAN

2019-20

157.1(1)A procuring entity may, before entering into a procurement contract with a prospective supplier by mutual agreement under section 156 or 157, publish on the New Brunswick Opportunities Network an ACAN indicating that the procuring entity intends to enter into a procurement agreement with a prospective supplier that it believes to be the only one able to meet the procurement requirements.

157.1(2)An ACAN shall be published for the minimum solicitation period for an open competitive bidding process set out in section 96 in order to allow interested suppliers an opportunity to signal their interest in bidding by submitting a statement of capabilities.

157.1(3)An ACAN shall contain the information listed in section 89.

157.1(4)If a procuring entity receives a statement of capabilities that meets the requirements set out in the ACAN, the procuring entity shall procure the good or service through an open competitive bidding process.

157.1(5)If no other supplier submits a statement of capabilities that meets the requirements set out in the ACAN, the procuring entity may enter into a procurement contract with the prospective supplier by mutual agreement under section 156 or 157, as the case may be.

2019-20

Mutual agreement permitted

158(1) A procuring entity may enter into a procurement contract with a prospective supplier by mutual agreement in order to procure the following goods or services:

(a) services with an estimated value of less than $50,000, if it can be shown that due to a need for specific skills, knowledge or experience, only one person or a very limited number of persons meet the requirements of the procurement;

(b) goods or services procured on behalf of an entity that is subject to neither the Act nor a trade agreement;

(c) goods intended for resale to the public;

(d) goods or services procured from a philanthropic institution or goods manufactured by or services provided by incarcerated persons or persons with disabilities;

(e) financial services respecting management of a Schedule A entity’s or a Schedule B entity’s financial assets and liabilities, including treasury operations and ancillary advisory and information services, regardless of whether they are delivered by a financial institution;

(f) health services and social services;

(g) goods or services procured from a Schedule A entity, a Schedule B entity, a government enterprise, another jurisdiction or a public body;

(h) fiscal agency or depository services;

(i) liquidation and management services on behalf of a regulated financial institution;

(j) services related to the sale, redemption, and distribution of the public debt of the Province or any other province or territory of Canada, including loans, bonds, debentures, notes, interest-bearing and non-interest-bearing treasury bills, certificates of indebtedness and any other securities representing part of the public debt of the Province or another province or territory of Canada;

(k) goods or services procured on behalf of or by non-governmental bodies that exercise governmental authority delegated to them;

(l) goods or services procured for the specific purpose of providing international assistance, including development aid, provided that the procuring entity does not discriminate on the basis of origin or location within Canada of goods, services or suppliers; and

(m) goods or services related to culture or cultural industries.

158(2) So long as a procuring entity is not doing so for the purpose of averting competition among prospective suppliers or for the purpose of discriminating against a prospective supplier, a procuring entity may enter into a procurement contract with a prospective supplier by mutual agreement in order to procure the following goods or services:

(a) goods and services that are strictly necessary and, for reasons of emergency brought about by an event unforeseeable by the following entities, cannot be obtained in a timely manner through an open competitive bidding process or a limited competitive bidding process:

(i) if the Minister procures the goods and services on behalf of a Schedule A entity, the Schedule A entity;

(ii) if the Minister procures the goods and services on behalf of a Schedule B entity, the Schedule B entity;

(iii) if a Schedule B entity procures the goods and services for itself, the Schedule B entity;

(iv) if a Schedule B entity procures the goods and services on behalf of another Schedule B entity, the other Schedule B entity; or

(v) if a Schedule B entity procures the goods and services on behalf of the Minister, the Minister;

(b) goods or services that, if procured by an open competitive bidding process, would impair the procuring entity’s ability to maintain security or order or to protect human, animal or plant life or health;

(c) goods that are legally restricted from moving interprovincially, if the restriction is consistent with the applicable trade agreements;

(d) advertising and public relation services;

(e) a prototype or a first good or service that is developed at the request of the procuring entity in the course of and for a particular contract for research, experiment, study or original development, including limited production or supply in order to incorporate the results of field testing and to demonstrate that the good or service is suitable for production or supply in quantity to acceptable quality standards, but does not include quantity production or supply to establish commercial viability or to recover research and development costs;

(f) goods or services of which the purchase is made under exceptionally advantageous conditions that only arise in the very short term, such as unusual disposals by enterprises that are not normally suppliers or disposals of assets of businesses in liquidation, receivership or bankruptcy, but not in routine purchases from regular suppliers;

(g) goods or services procured from the winner of a design contest, provided that:

(i) the contest is organized in a fair manner;

(ii) the procuring entity publishes on the New Brunswick Opportunities Network, for a period of time that the procuring entity considers sufficient to enable prospective suppliers to prepare their bid submissions, a notice of the contest containing sufficient information to enable prospective suppliers to determine if they wish to participate in the contest; and

(iii) the participants are judged by an independent jury with a view to awarding the design contract to the winner;

(h) goods on a commodity market; and

(i) goods or services resulting from additional deliveries by the original supplier of goods or services that were not included in the initial procurement, if a change of supplier for additional goods or services

(i) cannot be made for economic or technical reasons such as requirements of interchangeability or interoperability with existing equipment, software, services, or installations procured under the initial procurement; and

(ii) would cause significant inconvenience or substantial duplication of costs for the procuring entity.

2019-20; 2022-64; 2022-77

Mutual agreement permitted - international trade agreements

2022-77

159(1)So long as a procuring entity is not doing so for the purpose of averting competition among prospective suppliers or for the purpose of discriminating against a prospective supplier, a procuring entity may enter into a procurement contract with a prospective supplier by mutual agreement in order to procure the following goods or services:

(a) goods and services that are strictly necessary and, for reasons of urgency brought about by an event unforeseeable by the following entities, cannot be obtained in a timely manner through an open competitive bidding process:

(i) if the Minister procures the goods and services on behalf of a Schedule A entity, the Schedule A entity;

(ii) if the Minister procures the goods and services on behalf of a Schedule B entity, the Schedule B entity;

(iii) if a Schedule B entity procures the goods and services for itself, the Schedule B entity;

(iv) if a Schedule B entity procures the goods and services on behalf of another Schedule B entity, the other Schedule B entity; or

(v) if a Schedule B entity procures the goods and services on behalf of the Minister, the Minister;

(b) goods or consulting services regarding matters of a confidential or privileged nature, if the disclosure of those matters through an open competitive bidding process could reasonably be expected to compromise government confidentiality, cause economic disruption or otherwise be contrary to the public interest;

(c) if the procuring entity operates a sporting or convention facility, goods or services procured in order to comply with an agreement that is incompatible with a trade agreement and that was entered into with an entity that is not subject to a trade agreement;

(d) goods and services procured from a non-profit organization, other than a good or service referred to in paragraph 158(1)(d);

(e) goods procured for representational or promotional purposes;

(f) services procured for representational or promotional purposes outside the Province;

(g) transportation services provided by locally owned trucks for hauling aggregate on highway construction projects;

(h) construction materials if it can be demonstrated that transportation costs or technical considerations impose geographical limits on the available supply base, specifically in the case of sand, stone, gravel, asphalt compound and premixed concrete used in the construction or repair of roads;

(i) marketing management consulting services;

(j) local food; and

(k) goods or services financed primarily from donations.

159(2)When the procurement of a good or service is subject to only one international trade agreement, the estimated value of the good or service referred to in subsection (1) shall be less than the threshold value of the trade agreement.

159(3)When the procurement of a good or service is subject to more than one international trade agreement, the estimated value of the good or service referred to in subsection (1) shall be less than the lowest applicable threshold value of the relevant trade agreements.

2019-20; 2022-77

Regional economic development – Schedule A entities subject to trade agreements

2019-20; 2022-77

160After consultation with Treasury Board, the Minister may, on behalf of a Schedule A entity that is subject to a trade agreement, enter into a procurement contract with a prospective supplier by mutual agreement in order to promote regional economic development if the procurement complies with the applicable trade agreements.

2016, c.37, s.151; 2019-20; 2022-77

Regional economic development – exemption for Schedule B entities subject to trade agreements

2019-20; 2022-77

161 After consultation with Treasury Board, the Minister may grant to a Schedule B entity that is subject to a trade agreement a temporary exemption under section 18 of the Act in order to promote regional economic development if the procurement complies with the applicable trade agreements.

2016, c.37, s.151; 2019-20; 2022-77

Regional economic development – exemption for Schedule A entities and Schedule B entities not subject to trade agreements

2019-20; 2022-77

161.1(1)After consultation with Treasury Board, the Minister may, on behalf of a Schedule A entity that is not subject to a trade agreement, enter into a procurement contract with a prospective supplier by mutual agreement in order to promote regional economic development if the Minister is satisfied that a region of the Province may gain a significant economic benefit from doing so.

161.1(2)If a Schedule B entity is not subject to a trade agreement, the Minister may, after consultation with Treasury Board, grant to the Schedule B entity a temporary exemption under section 18 of the Act for the purposes of promoting regional economic development if the Minister is satisfied that a region of the Province may gain a significant economic benefit from granting the exemption.

2019-20; 2022-77

Procurement set-aside for small businesses

2019-20

161.2If the Province establishes a procurement set-aside program for small businesses that is fair, open and transparent and does not discriminate on the basis of origin or location of goods, services or prospective suppliers, a procuring entity may restrict all or a portion of a solicitation for submissions to small businesses in accordance with the program.

2019-20

5

GENERAL PROVISIONS

Procurement documented

162Regardless of the value of a procurement contract or the procurement method used, a procuring entity shall maintain all documents related to a procurement, including those necessary to justify the procurement method used.

Prohibitions

163(1)No person shall prepare, design or otherwise structure a procurement or separate procurement requirements in order to avoid the requirements of the Act or this Regulation or to avoid the rules set out in a trade agreement.

163(2)No person shall select a method for evaluating bid submissions in order to avoid the requirements of the Act or this Regulation.

2022-77

Temporary exemptions

164The Minister may grant a temporary exemption under section 3 or 18 of the Act if the temporary exemption is compatible with applicable trade agreements and the Minister is satisfied that

(a) the safety of persons or property may be put at risk if the temporary exemption is not granted, or

(b) savings will be realized if the temporary exemption is granted.

2022-77

Joint procurement

165(1)In the case of a joint procurement of goods or services by a Schedule A entity and a Schedule B entity, the provisions of the Act and this Regulation that are the most restrictive between those provisions that apply to the Schedule A entity and those provisions that apply to the Schedule B entity shall be complied with.

165(2)When an organization or jurisdiction that is not subject to the Act and this Regulation procures goods or services

(a) on behalf of a Schedule A entity, the Minister shall ensure that sections 16, 89 and 96 are complied with, and

(b) on behalf of a Schedule B entity, the Schedule B entity shall ensure that sections 59, 89 and 96 are complied with.

2022-77

Professional services exempted

166(1)The services that are legislatively required to be provided by the following licensed professionals are exempt from the application of the Act:

(a) Repealed: 2019-20

(b) Repealed: 2019-20

(c) Repealed: 2019-20

(d) Repealed: 2019-20

(e) lawyers;

(f) notaries;

(g) medical doctors;

(h) dentists;

(i) nurses;

(j) midwives;

(k) pharmacists;

(l) psychologists; and

(m) veterinarians.

166(2)The services that are legislatively required to be provided by the following licensed professionals are exempt from the application of the Act if the services are procured by or on behalf of a Schedule A entity or a Schedule B entity that is not subject to CETA, or by or on behalf of a Schedule A entity or a Schedule B entity that is subject to CETA and the estimated value of the services to be procured is less than the lowest applicable threshold value of CETA:

(a) engineers;

(b) architects;

(c) land surveyors; and

(d) accountants.

2019-20; 2021-15

Goods and services exempted

2019-20

166.1The following goods or services are exempt from the application of the Act:

(a) goods or services procured under a contract that is to be awarded under a cooperation agreement that is financed, in whole or in part, by an international cooperation organization, but only to the extent that the agreement between the procuring entity and the organization includes rules for awarding contracts that differ from the obligations set out in the applicable trade agreements; and

(b) services of expert witnesses or factual witnesses used in court or legal proceedings.

2019-20; 2022-77

6

COMMENCEMENT

Commencement

167This Regulation comes into force on October 15, 2014.

SCHEDULE A

Department of Agriculture, Aquaculture and Fisheries

Department of Education and Early Childhood Development

Department of Environment and Local Government

Department of Finance and Treasury Board

Department of Health

Department of Indigenous Affairs

Department of Justice and Public Safety

Department of Natural Resources and Energy Development

Department of Post-Secondary Education, Training and Labour

Department of Social Development

Department of Tourism, Heritage and Culture

Department of Transportation and Infrastructure

Elections New Brunswick

Executive Council Office

Labour and Employment Board

Language Training Centre

Legislative Assembly

New Brunswick Police Commission

New Brunswick Women’s Council

Office of the Auditor General

Office of the Comptroller

Office of the Leader of the Opposition

Office of the Lieutenant-Governor

Office of the Premier

Ombud New Brunswick

Opportunities New Brunswick

Regional Development Corporation

Service New Brunswick

2015, c.2, s.67; 2015, c.44, s.104; 2015-65; 2016, c.37, s.151; 2016, c.33, s.19; 2019, c.2, s.117; 2019-20; 2019, c.29, s.125; 2019, c.19, s.201; 2020, c.25, s.89; 2022-77; 2023, c.40, s.39

SCHEDULE B

Cannabis NB Ltd.

Collège communautaire du Nouveau-Brunswick (CCNB)

EM/ANB Inc.

Financial and Consumer Services Commission

Kings Landing Corporation

Local governments as defined in the Local Governance Act

Mount Allison University

New Brunswick Community College (NBCC)

New Brunswick Economic and Social Inclusion Corporation

New Brunswick Energy Marketing Corporation

New Brunswick Health and Senior Care Council

New Brunswick Highway Corporation

New Brunswick Housing Corporation

New Brunswick Liquor Corporation

New Brunswick Power Corporation

New Brunswick Research and Productivity Council

Regional Health Authority A

Regional Health Authority B

Regional service commissions established under the Regional Service Delivery Act

St. Thomas’ University

The University of New Brunswick

Université de Moncton

Workplace Health, Safety and Compensation Commission

2015, c.2, s.67; 2015, c.44, s.104; 2015-65; 2016, c.28, s.82; 2017, c.3, s.31; 2017, c.20, s.142; 2017, c.45, s.7; 2019-20; 2022, c.61, s.21; 2023, c.31, s.7

SCHEDULE C

Offences Resulting in Disqualification

Provision	Description of offence	Period of Disqualification
Criminal Code (Canada)
119	Bribery of judicial officers	5 years
120	Bribery of officers	5 years
121	Frauds on the government	5 years
122	Breach of trust by public officer	5 years
123	Municipal corruption	5 years
124	Selling or purchasing office	5 years
125	Influencing or negotiating appointments or dealing in offices	5 years
132	Perjury (in connection with a public contract)	5 years
136	Witness giving contradictory evidence (in connection with a public contract)	5 years
139	Obstructing justice	1 year
220	Causing death by criminal negligence (in connection with a public contract)	5 years
221	Causing bodily harm by criminal negligence (in connection with a public contract)	5 years
236	Manslaughter (in connection with a public contract)	5 years
336	Criminal breach of trust	5 years
346	Extortion	2 years
362	False pretence or false statement	5 years
366	Forgery	5 years
368	Use, trafficking or possession of forged document	5 years
374	Drawing document without authority	1 year
375	Obtaining something by instrument based on forged document	5 years
380	Fraud – property, money or valuable security or service	5 years
382	Fraudulent manipulation of stock exchange transactions	2 years
382.1	Prohibited insider trading	2 years
388	Misleading receipt or acknowledgment	5 years
390	Fraudulent receipts, certificates or acknowledgments under the Bank Act	1 year
392	Disposal of property to defraud creditors	1 year
397	Falsification of books and documents	5 years
398	Falsifying employment record	5 years
422	Criminal breach of contract	2 years
423	Intimidation (in connection with a public contract)	2 years
423.1	Intimidation of a justice system participant or a journalist	2 years
425	Offences by employers	2 years
425.1	Threats and retaliation against employees	2 years
426	Secret commissions	2 years
430(2)	Mischief causing actual danger to life	2 years
430(5.1)	Act or omission likely to constitute mischief	2 years
462.31	Laundering proceeds of crime	5 years
463	Attempts and accessories	Period identical to the period relating to the offence concerned
464	Counselling offence that is not committed	Period identical to the period relating to the offence concerned
465	Conspiracy	Period identical to the period relating to the offence concerned
467.11	Participation in activities of criminal organization	5 years
467.12	Commission of offence for criminal organization	5 years
467.13	Instructing commission of offence for criminal organization	5 years

Competition Act (Canada)
45	Conspiracies, agreements or arrangements between competitors	5 years
46	Implementation of foreign directives	5 years
47	Bid-rigging	5 years

Corruption of Foreign Public Officials Act (Canada)
3	Bribing a foreign public official	5 years

Controlled Drugs and Substances Act (Canada)
5	Trafficking in substance and possession for purpose of trafficking	5 years
6	Importing or exporting substances and possession for the purpose of exporting	5 years
7	Production of substance	5 years

Income Tax Act (Canada)
239(1)(a)	Making, or participating in, assenting to or acquiescing in the making of, false or deceptive statements in a return, certificate, statement or answer	5 years
239(1)(b)	Destroying, altering, secreting, mutilating or otherwise disposing of records or books of account of a taxpayer to evade payment of taxes	5 years
239(1)(c)	Making, or assenting to or acquiescing in the making of, false or deceptive entries, or omitting, or assenting to or acquiescing in the omission to enter a material particular in records or books of account of a taxpayer	5 years
239(1)(d)	Wilfully evading or attempting to evade compliance with the Act or payment of taxes	5 years
239(1)(e)	Conspiring with any person to commit an offence described in paragraphs 239(1)(a) to (d) of the Act	5 years

Excise Tax Act (Canada)
327(1)(a)	Making, or participating in, assenting to or acquiescing in the making of, false or deceptive statements in a return, application, certificate, statement, document or answer	5 years
327(1)(b)(i)	Destroying, altering, mutilating, secreting or otherwise disposing of documents for the purpose of evading payment or remittance of any tax or net tax or obtaining a refund or rebate to which the person is not entitled	5 years
327(1)(b)(ii)	Making, or assenting to or acquiescing in the making of, false or deceptive entries, or omitting, or assenting to or acquiescing in the omission, to enter a material particular in the documents of a person for the purpose of evading payment or remittance of any tax or net tax or obtaining a refund or rebate to which the person is not entitled	5 years
327(1)(c)	Wilfully evading or attempting to evade compliance with the Act or payment or remittance of tax or net tax imposed under the Act	5 years
327(1)(d)	Wilfully obtaining or attempting to obtain a rebate or refund to which the person is not entitled	5 years
327(1)(e)	Conspiring with any person to commit an offence described in paragraphs 327(1)(a) to (c) of the Act	5 years

2022-77

N.B. This Regulation is consolidated to December 13, 2023.

2014-93 - Goods and Services

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