Acts and Regulations

82-109 - General

Full text
Revoked on 1 December 2022
NEW BRUNSWICK
REGULATION 82-109
under the
Crown Construction Contracts Act
(O. C. 82-506)
Filed June 17, 1982
Under section 8 of the Crown Construction Contracts Act, the Lieutenant-Governor in Council makes the following Regulation:
Repealed: 2021, c.38, s.37
1This Regulation may be cited as the General Regulation - Crown Construction Contracts Act.
2(1)In this Regulation
“claimant” means a subcontractor, material supplier, supplier or worker under contract with a contractor or subcontractor for supply of work, material, goods or supplies;(réclamant)
“Owner” means Her Majesty in the right of the Province, or an agency, corporation or Minister of the Crown designated in a contract to which the Act applies as a party to the contract with a contractor.(maître de l’ouvrage)
2(2)The following corporations and agencies are included in the definition of “Crown” for the purposes of the Act:
Collège communautaire du Nouveau-Brunswick (CCNB)
New Brunswick Community College (NBCC)
New Brunswick Energy Marketing Corporation
New Brunswick Housing Corporation
New Brunswick Liquor Corporation
New Brunswick Power Corporation
Regional Development Corporation
Research and Productivity Council
Workplace Health, Safety and Compensation Commission
2003, c.E-4.6, s.163; 2004-111; 2010-8; 2010-82; 2013, c.7, s.154
3This Regulation applies to every contract for the construction, repair or alteration of land or structures owned by the Crown.
4(1)Subject to subsection (2), every award of contract for the construction, repair or alteration of land or structures owned by the Crown shall be preceded by public tender.
4(2)Where a proposed contract for the construction, repair or alteration of land or structures owned by the Crown has a value, estimated by a Crown engineer or architect, of less than,
(a) in the instance of works other than highways, ten thousand dollars, the award of contract may be negotiated with one person,
(b) in the instance of highway work, thirty thousand dollars, the award of contract may be negotiated with one person,
(c) in the instance of works other than highways, forty thousand dollars, the award of contract may be preceded by tenders invited from not fewer than three persons, or
(d) in the instance of highway work, seventy-five thousand dollars, the award of contract may be preceded by tenders invited from not fewer than three persons,
rather than preceding the award of contract by public tender.
4(3)When tenders are invited under paragraph (2)(c) or (d)
(a) in the case of a tender call that requires the submission of paper based tenders,
(i) the invitation to tender shall stipulate the time, date and location of the tender opening, and
(ii) the tender opening shall be a public tender opening and shall include the posting of the names of the tenderers and the amounts of their respective bids, or
(b) in the case of a tender call that requires the submission of electronic tenders, the invitation to tender shall stipulate the time and date for the opening of tenders and the requirements for their electronic submission.
4(4)Where an award of contract would fall within the provisions of subsection (2) but those provisions are not followed, the award shall be made in accordance with subsection (1).
2021-59
4.1The amount prescribed for the purposes of subsection 2.1(1) of the Act is $100,000.
2020, c.29, s.108
5Repealed: 2020, c.29, s.108
85-39; 85-136; 2016, c.37, s.43; 2019, c.29, s.40; 2020, c.29, s.108
6(1)Subject to subsections (2) and (5), every award of contract for the construction, repair or alteration of land or structures owned by the Crown and under the administration and control of the Minister of Education and Early Childhood Development shall be preceded by public tender.
6(2)Where a proposed contract for the construction, repair or alteration of land or structures owned by the Crown and under the administration and control of the Minister of Education and Early Childhood Development
(a) has a value, where a tender call is made by a District Education Council, of less than two thousand dollars as estimated by the District Education Council, the award of contract may be negotiated with and made to one person by the District Education Council,
(b) has a value, where the tender call is made by a District Education Council, of two thousand dollars or more but not exceeding ten thousand dollars as estimated by the District Education Council, the award of contract may be preceded by tenders invited from not fewer than three persons,
(c) has a value, as estimated by an engineer or architect of the Minister of Education and Early Childhood Development, of more than ten thousand dollars, the contract shall have tenders called and the award of contract made by the Minister of Education and Early Childhood Development in accordance with section 4, or
(d) is tendered by the Minister of Education and Early Childhood Development, the tender call shall, subject to subsection (5), be in accordance with the provisions of section 4.
6(3)When tenders are invited by a District Education Council under paragraph (2)(b)
(a) in the case of a tender call that requires the submission of paper based tenders,
(i) the invitation to tender shall stipulate the time, date and location of the tender opening, and
(ii) the tender opening shall be a public tender opening and shall include the posting of the names of the tenderers and the amounts of their respective bids, or
(b) in the case of a tender call that requires the submission of electronic tenders, the invitation to tender shall stipulate the time and date for the opening of tenders and the requirements for their electronic submission.
6(4)Notwithstanding paragraphs (2)(a) and (2)(b), the Minister of Education and Early Childhood Development may by notice in writing advise a District Education Council that a contract for the construction, repair or alteration of land or structures owned by the Crown and under the administration and control of the Minister of Education and Early Childhood Development shall have tenders called and the award of contract made by the Minister of Education and Early Childhood Development.
6(5)Where the Minister of Education and Early Childhood Development deems an emergency exists whereby lands or structures owned by the Crown and under the administration and control of the Minister of Education and Early Childhood Development require immediate reconstruction or repair and the provisions of paragraph (2)(b) would apply, he may
(a) by notice in writing authorize a District Education Council to negotiate with and award a contract to one person for such work as is necessary to alleviate the emergency if the value of the work as estimated by the District Education Council does not exceed ten thousand dollars, or
(b) negotiate with and award a contract to one person for such work as is necessary to alleviate the emergency if the value of the work as estimated by an engineer or architect of the Minister of Education does not exceed ten thousand dollars.
6(6)Where the Minister of Education and Early Childhood Development authorizes a District Education Council to act under paragraph (5)(a), the negotiation for a contract and the award thereof may be undertaken upon receipt by the District Education Council of a telegram, telex or telephone call from the Minister of Education and Early Childhood Development or his authorized representative which initial authorization shall be confirmed by proper notice in writing.
2009-121; 2010, c.31, s.29; 2021-59
7(1)A public tender for award of a contract to which this Regulation applies shall include:
(a) reasonably in advance of the tender closing date, public advertisement of the work to be carried out;
(b) sufficient information in the advertisement referred to in paragraph (a) to enable a prospective tenderer
(i) if a tender call requires the submission of paper based tenders, to obtain tender documents, deposit a tender and attend the tender opening, or
(ii) if a tender call requires the submission of electronic tenders, to obtain tender documents and submit a tender electronically;
(c) if a tender call requires the submission of paper based tenders, the opening of properly deposited tenders in public and the posting of the name and the tender price of each tenderer whose tender is not rejected in accordance with section 11; and
(d) if a tender call requires the submission of electronic tenders, the opening of tenders that are properly submitted electronically and the posting of the name and the tender price of each tenderer whose tender is not rejected in accordance with section 11.
7(2)The provisions of this section and sections 8, 9, 10, 14, 21, 22 and 23 apply only to public tender calls.
7(3)Section 11 applies mutatis mutandis to invited tender calls.
2009-121; 2021-59
8(1)Only those tenders submitted by persons who have been listed either individually or jointly as having received tender documents from the Crown shall be considered.
8(2)Addenda to the tender documents shall be issued only to those persons listed in accordance with subsection (1).
8(3)It is the responsibility of a person submitting a tender to ensure that he is listed as having received tender documents.
8(4)Tender documents may only be obtained from the location named in a public notice of tender.
9(1)A tenderer shall
(a) if a tender call requires the submission of paper based tenders, deposit their tender in the tender box at the location and within the time stipulated in the public notice of tender, or
(b) if a tender call requires the submission of electronic tenders, submit their tender in accordance with the requirements set out in the public notice of tender within the time stipulated in the public notice of tender.
9(2)It is the responsibility of the tenderer
(a) if a tender call requires the submission of paper based tenders, to deposit their tender in the tender box at the location and within the time stipulated in the public notice of tender and the Crown assumes no responsibility for depositing in the tender box at the location and within the time stipulated in the public notice of tender any tender submission which has been mailed, transmitted or delivered to an employee of the Crown, and
(b) if a tender call requires the submission of electronic tenders, to submit their tender in accordance with the requirements set out in the public notice of tender within the time stipulated in the public notice of tender and, if the tender is submitted to the Crown in any other manner, the Crown assumes no responsibility for submitting the tender in accordance with the requirements set out in the public notice of tender within the time stipulated in the public notice of tender.
9(3)A tender shall be considered if
(a) in the case of a tender call that requires the submission of paper based tenders, the tender is deposited in the tender box within the time stipulated in the public notice of tender, or
(b) in the case of a tender call that requires the submission of electronic tenders, the tender is submitted in accordance with the requirements set out in the public notice of tender within the time stipulated in the public notice of tender.
9(4)A person who has signed and submitted an original tender may amend the tender
(a) in the case of a tender call that requires the submission of paper based tenders, after the tender has been deposited in the tender box by ensuring that a letter or facsimile that clearly identifies on its face the project being tendered and the tender being amended is deposited in the tender box before the time stipulated in the public notice of tender for the opening of tenders, or
(b) in the case of a tender call that requires the submission of electronic tenders, after the tender has been submitted in accordance with the requirements set out in the public notice of tender, by ensuring that an amendment that clearly identifies the project being tendered and the tender being amended is submitted in accordance with the requirements set out in the public notice of tender within the time stipulated in the public notice of tender.
9(5)An amendment of tender shall not disclose the amended total tender price but shall show
(a) the revised bid price per items to be amended in the case of a unit price contract,
(b) the amount to be added to or subtracted from the contract price in the case of a lump sum contract, or
(c) the information that is missing from the original tender deposit.
9(6)Subsection (2) applies to any letter or facsimile amending a tender and any amendment of tender that is submitted electronically.
9(7)If the tender deposit and amendment is found to be a valid submission of tender and amendment, the contract price shall be amended to reflect the original tender deposit as amended by the tender amendment.
87-168; 2021-59
10(1)If a tender call requires the submission of paper based tenders, thirty minutes before the time limit for submission of tenders the tender box shall be moved to the location stipulated in the public notice of tender for the opening of tenders.
10(2)A tender may
(a) if a tender call requires the submission of paper based tenders, be deposited in the tender box at the tender opening location up until the time stipulated in the public notice of tender for the opening of tenders, or
(b) if a tender call requires the submission of electronic tenders, be submitted in accordance with the requirements set out in the public notice of tender within the time stipulated in the public notice of tender.
10(3)In the case of a tender call that requires the submission of paper based tenders, the representative of the Crown shall, at the time specified for tender opening in the notice of tender, declare
(a) that no further tenders shall be accepted, whereupon no further tenders may be deposited,
(b) that any person wishing to withdraw his tender shall do so immediately, whereupon the tenders of those persons wishing to withdraw shall be delivered up to those persons unopened, and
(c) that no further tenders may be withdrawn, whereupon the tender opening procedure shall be followed and no person shall be allowed to withdraw his tender.
2021-59
11(1)A tender submitted for a proposed contract to which the Act and this Regulation apply shall be rejected and the tender shall not be considered if the tender
(a) is not accompanied by the required bid security deposit or bid bond in an amount equal to or greater than the amount stipulated,
(b) is not accompanied by a bid bond meeting the requirements of subsection 15(4), where a bid bond is required by the tender call,
(c) is not accompanied by a letter from a New Brunswick resident agent of an insurance company licensed to do business in the Province stating that the bid bond, where required, has been negotiated for, procured from and the premium paid to that agent,
(d) is not properly signed by the tenderer,
(e) does not contain the bid price, unit price or fixed price written in words,
(f) does not have the words “dollars” and, where applicable, “cents” set out in the written item bid,
(g) contains any form of qualification of or, unless the tender documents otherwise provide, any unsolicited alternative to the tender,
(h) does not contain a bid for each item required to be bid,
(i) contains a bid on an item not included in the bid form,
(j) in the case of a tender call that requires the submission of paper based tenders, is not contained in an envelope having on the face of it the name of the tenderer and identification of the contract for which the tender is submitted,
(k) does not contain all addenda issued to prospective tenderers, each signed by the tenderer,
(l) is the second one submitted by the same tenderer, in which case all tenders submitted by that tenderer shall be rejected,
(m) in the case of a tender call that requires the submission of paper based tenders, is made by a tenderer not listed or by a consortium which or each member of which is not listed by the Crown as having received tender documents from the Crown,
(n) contains a change in a written bid price not initialled by the tenderer,
(o) omits any document required by or fails to comply with any provisions of the tender documents, or
(p) otherwise materially deviates from accepted tendering practices.
11(2)Subject to subsection (1), a tender submitted for a proposed contract to which the Act and this Regulation apply may be accepted notwithstanding that it contains
(a) errors in mathematics, in which case the proper computation shall be carried out and the resultant total used in determining the tender value,
(b) a conflict between the written bid price and the bid price in numbers, in which case the bid shall be corrected to reflect the written bid price, or
(c) omission of a “provisional sum”, in which case the required “provisional sum” shall be inserted and the tender shall be corrected to reflect its inclusion where the “provisional sum” is specified by the Crown for a unit price contract, but the tender shall be rejected where the “provisional sum” is specified by the Crown for a fixed price contract.
11(3)The decision to accept or reject a tender as a valid submission of tender made at the time of tender opening by the Crown representative is final.
2021-59
12(1)Persons submitting tenders shall submit their tenders with unit prices written out and lump sum prices written out.
12(2)The total tender price in a unit price tender does not need to be written out.
12(3)The written figures in a tender shall govern and be binding on the tenderer even though totals arrived at disagree with figures or totals given in figures.
13(1)A person submitting a tender as a general contractor shall list in his tender submission for each sub-trade requested to be listed in the tender documents
(a) the name of each sub-trade, whether obtained through a bid depository or not, and
(b) the price at which the sub-trade has agreed to provide the trade.
13(2)Where a person submits a tender as a general contractor and proposes to sub-trade to himself on one or more sub-trades listed in the tender documents, he shall, in his tender submission,
(a) identify each trade for which he is sub-trading to himself,
(b) state the price at which he will provide the trade, and
(c) set forth his qualifications for providing the sub-trade.
13(3)Where a person submits a tender as a general contractor and, with regard to the sub-trades listed in the tender documents, proposes to sub-trade to himself as well as to name sub-trades for other portions of the work, he shall comply with subsections (1) and (2).
13(4)A person submitting a tender shall list those sub-trades requested to be listed in the tender documents.
14(1)All tenders shall be opened by the tender opening committee and, if a tender call requires the submission of paper based tenders, the tenders shall be opened in public at the location stipulated in the public notice of tender.
14(2)Each tender shall be opened individually and checked for completeness and where the tenderer has failed to comply with the requirements of subsection 11(1), the tender opening committee shall reject it forthwith.
14(3)If the tender and amendment of tender, if any, is not rejected, the tender price, as amended by an amendment of tender, if any, and the name of the person submitting the tender shall be posted.
14(4)In the case of a tender call that requires the submission of paper based tenders, if a tender is rejected, the tender shall be returned to the person submitting the tender.
14(5)The award of the contract shall not take place at the time of tender opening.
2021-59
15(1)In this section and in section 16
“estimated contract value” means the estimated cost of carrying out the work as determined by the appropriate engineer or architect of the Crown.(valeur estimative du marché)
15(2)The Crown shall require a bid bond to be submitted with a tender if the estimated contract value of work to be performed is equal to or greater than five hundred thousand dollars.
15(3)The Crown may require a bid bond to be submitted with a tender if the estimated contract value of the work to be performed is less than five hundred thousand dollars.
15(4)A bid bond submitted pursuant to this section shall provide that if the tenderer is awarded the contract, a labour and material payment bond and performance bond shall be supplied to the Crown in accordance with the provisions of section 83 of the Construction Remedies Act by the same or another surety company.
15(5)Nothing in this section shall require the Crown to divulge the estimated contract value.
2020, c.29, s.108
16(1)Where the Crown does not require a bid bond under subsection 15(3), the Crown shall, if the estimated contract value is five thousand dollars or greater, require a bid security deposit which shall be in the form of
(a) a certified cheque made payable to
(i) the Minister of Finance and Treasury Board of the Province, or
(ii) if the contract is to be awarded by a corporation or agency set out in subsection 2(2), such corporation or agency, or
(b) negotiable securities in bearer form having a current market value at the time of tender equal to or greater than the amount of security deposit required.
16(2)Where the Crown does not require a bid bond under subsection 15(3), the Crown, if the estimated contract value is less than five thousand dollars, may, in the information supplied to bidders,
(a) stipulate that a bid security deposit as set forth in subsection (1) shall be deposited with the tender, or
(b) stipulate that a bid security deposit is not required, in which case the tender shall not be rejected as a valid submission of tender solely due to the absence of a bid security deposit.
16(3)Where negotiable securities are used as a bid security deposit under subsection (1), they shall consist of one or more of the following forms:
(a) bonds, debentures or securities of the Government of Canada or of the Government of any Province of Canada;
(b) bonds or debentures of a corporation, if payment of the bonds or debentures is guaranteed both as to principal and interest by Canada or any province of Canada, by a local government of this Province or by Opportunities New Brunswick;
(c) bonds or debentures of any local government of this Province;
(c.1) Repealed: 2017, c.20, s.48
(d) guaranteed trust or investment certificates or receipts of a trust company that is incorporated under the laws of Canada or of a Province of Canada and approved by the Lieutenant-Governor in Council under the Trust Companies Act;
(e) deposit receipts, deposit notes, certificates of deposit, acceptances and other similar instruments issued by or endorsed by a Canadian chartered bank, when such receipts, notes, certificates, acceptances and instruments are made in such manner that both the Crown and the tenderer are named payees therein and the Crown may call for redemption thereof, provided that the term thereof is not less than the estimated completion date of the contract being tendered with no restriction on early redemption other than as may be stipulated by way of reduced interest payable in the event of redemption prior to maturity; or
(f) irrevocable standby letter of credit set out in Form 1, issued by or endorsed by any of the following persons, within the meaning of the Canadian Payments Act (Canada):
(i) a bank or an authorized foreign bank,
(ii) a loan company or trust company that is a member of the Canadian Payments Association, or
(iii) a local cooperative credit society that is a member of a central that is a member of the Canadian Payments Association.
16(4)Where the Crown requires a bid security deposit under the section, the tender documents shall stipulate the amount of the bid security deposit.
16(5)Where, notwithstanding subsection (1), a tenderer has submitted a bid bond when a bid security deposit was required by the Crown in accordance with this section, the submission of the bid bond shall not be a cause for rejection of submission of tender provided that the bid bond submitted meets the requirements of subsection 15(4).
2005-60; 2008-94; 2010, c.31, s.29; 2015, c.2, s.62; 2017, c.20, s.48; 2019, c.29, s.40
17Repealed: 2020, c.29, s.108
2021-59; 2020, c.29, s.108
18Repealed: 2020, c.29, s.108
2020, c.29, s.108
19Repealed: 2020, c.29, s.108
2020, c.29, s.108
20(1)Where the Crown requires a bid security deposit under section 16, the bid security deposit of the successful tenderer shall, if a contract is entered into with that person, be held by the Crown as security for the due performance of the work by the contractor.
20(2)Where the bid security deposit of the successful tenderer is in the form of a certified cheque, the certified cheque
(a) where the Crown is not a corporation or agency named in subsection 2(2), shall be deposited in the Consolidated Fund and shall bear interest in accordance with the General Regulation - Financial Administration Act, or
(b) where the Crown is a corporation or agency named in subsection 2(2), shall be deposited at interest with any Canadian chartered bank,
pending disposition under the terms of the contract and any interest shall be deemed to be and treated as an increment to and part of the bid security deposit.
21(1)Subject to subsections (2) and (3), the Crown shall, within twenty-one days of the tender opening for the contract, notify the successful tenderer by registered mail that he is the successful tenderer and call on him to enter into a formal contract for construction of the work.
21(2)Subsequent to the tender opening and prior to the expiry of the twenty-one day period provided for in subsection (1), the Crown may request all tenderers to agree in writing to an extension of the time within which it must notify tenderers under that subsection.
21(3)Where any tenderer has agreed to the extension of time requested under subsection (2), the time for giving notice under section (1) is extended by the amount of time contained in the request of the Crown made under subsection (2).
21(4)The successful tenderer notified in accordance with subsection (1) shall, within fourteen days of notification or within such further time as may be allowed by the Crown,
(a) provide a labour and material payment bond and performance bond in the amount stipulated, if required to do so under section 83 of the Construction Remedies Act,
(b) provide proof of insurance coverage of the type and in the amount stipulated in the tender document, and
(c) execute the formal contract.
2021-59
22(1)If a successful tenderer does not comply with the provisions of section 21 within the time stipulated, he shall be considered to have refused to enter into the contract and section 24 applies.
22(2)Where default under subsection (1) occurs, the Crown may call upon the next suitable tenderer to enter into the contract in accordance with the provisions of section 21.
23A tender is binding on the person submitting the tender until the person receives by registered mail formal notification of the rejection of the tender but in no case, unless as successful tenderer the person has received notification under subsection 21(1), shall the tender be binding on the person for more than 21 days after the date of tender opening or for any additional days added in accordance with subsections 21(2) and (3).
2021-59
24Where the successful tenderer has been called upon to enter into formal contract by the Crown and refuses to do so within the time limit stipulated therefor, the Crown shall
(a) cash or negotiate the bid security deposit and retain a sum equal to the difference between the value of his tender and the value of the next lowest tender and shall return an amount equal to the surplus, if any, to the tenderer whose bid security deposit was so forfeited, or
(b) notify the surety company where a bid bond was submitted.
25(1)Where the tender documents stipulate that a statement shall accompany each tender indicating the price at which the tenderer would supply any named item or items from a named manufacturer, the tenderer shall submit with his tender a separate list showing the prices included in his tender price for the named item or items and the prices for such items if supplied by the named manufacturer.
25(2)The tender opening committee shall not post the information contained in the separate list.
25(3)The Crown may ask the successful tenderer to use the named items supplied by the named manufacturer in the construction of the work and his tender price per unit shall be amended accordingly.
26(1)The Crown may, after notifying the successful tenderer but before the contract is entered into, request the successful tenderer to accept a subcontractor or supplier other than one submitted by him in his tender, in which case
(a) the successful tenderer may refuse, or
(b) subject to subsection (2), if the successful tenderer accepts, his tender price shall be adjusted accordingly.
26(2)Where a bid depository has been stipulated in the tender call, the substituted subcontractor or supplier shall only be used where the substituted subcontractor or supplier has submitted a proper bid to the successful tenderer within the bid depository rules.
27The Machine Rental Regulation - Crown Construction Contracts Act shall apply to all contracts to which the Act and this Regulation apply.
28The Crown may require a contractor to supply insurance coverage on the work for the type of risk and in the amounts set forth in the tender documents.
29The Chair of the Treasury Board may waive the requirements of section 4, 21 or 23 with respect to any proposed contract.
85-39; 2001-84; 2016, c.37, s.43; 2019, c.29, s.40
30Regulation 73-10 under the Crown Construction Contracts Act is repealed.
31This Regulation comes into force on July 1, 1982.
N.B. This Regulation is consolidated to December 1, 2022.