Part C: Resulting contract clauses

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Resulting contract clauses

All clauses and conditions identified by number, date and title are set out in the Standard Acquisition Clauses and Conditions (SACC) Manual (Archived – Standard Acquisition Clauses and Conditions Manual) issued by PWGSC.

A model request for proposal and resulting contract clauses document is available for use for Federal Department Users of the Task and solutions professional services (TSPS) SA. Individual resulting contract clauses may be modified to suit individual Client requirements, available on GCPedia Updates to Professional Services Contracting Processes (GCpedia) for the clients to use.

However, the conditions of any contract awarded under the TSPS task-based SA will be in accordance with the following:

1. General conditions—Higher complexity—Services

The conditions of any contract awarded under this Supply Arrangement will be in accordance with:2035 (Client inserts date) General Conditions – Higher Complexity – Services.

a) General Conditions:

2035 (insert date), General Conditions – Higher Complexity – Services, apply to and form part of the Contract.

With respect to Section 01 – Interpretation, of General Conditions 2035, is added with the following:

“Actual Time Worked” means time spent actively performing work, excluding any passive time such as retainer or standby time or time awaiting for information or task assignment or any other form of passive time similar to the ones described above.

With respect to Section 06 – Subcontracts, of General Conditions 2035 is deleted and replaced with the following:

  1. Except as provided in subsection 2, the Contractor must obtain the Contracting Authority's written consent before subcontracting or permitting the subcontracting of any part of the Work. A subcontract includes a contract entered into by any subcontractor at any tier to perform any part of the Work.
  2. The Contractor is not required to obtain consent for subcontracts specifically authorized in the Contract. The Contractor may also without the consent of the Contracting Authority:
    1. purchase "off-the-shelf" items and any standard articles and materials that are ordinarily produced by manufacturers in the normal course of business;
    2. permit its subcontractors at any tier to make purchases or subcontract as permitted in paragraph (a).
  3. In any subcontract other than a subcontract referred to in paragraph 2.(a), the Contractor must, unless the Contracting Authority agrees in writing, ensure that the subcontractor is bound by conditions compatible with and, in the opinion of the Contracting Authority, not less favourable to Canada than the conditions of the Contract, with the exception of requirements under the Federal Contractors Program for employment equity which only apply to the Contractor.
  4. In any subcontract other than a subcontract referred to in paragraph 2.(a), the Contractor must inform the Contracting Authority if, during the performance of any portion of the Work, a subcontractor is also performing work under other contracts or subcontracts with Canada.

    Even if Canada consents to a subcontract, the Contractor is responsible for performing the Contract and Canada is not responsible to any subcontractor. The Contractor is responsible for any matters or things done or provided by any subcontractor under the Contract and for paying any subcontractors for any part of the Work they perform.

With respect to Section 30 – Termination for Convenience, of General Conditions 2035, Subsection 04 is deleted and replaced with the following Subsections 04, 05 and 06:

  1. The total of the amounts, to which the Contractor is entitled to be paid under this section, together with any amounts paid, due or becoming due to the Contractor must not exceed the Contract Price.
  2. Where the Contracting Authority terminates the entire Contract and the Articles of Agreement include a Minimum Work Guarantee, the total amount to be paid to the Contractor under the Contract will not exceed the greater of:
    1. the total amount the Contractor may be paid under this section, together with any amounts paid, becoming due other than payable under the Minimum Work Guarantee, or due to the Contractor as of the date of termination, or
    2. the amount payable under the Minimum Work Guarantee, less any amounts paid, due or otherwise becoming due to the Contractor as of the date of termination.
  3. The Contractor will have no claim for damages, compensation, loss of profit, allowance arising out of any termination notice given by Canada under this section except to the extent that this section expressly provides. The Contractor agrees to repay immediately to Canada the portion of any advance payment that is unliquidated at the date of the termination.

2. Security Requirement for Contracts

Contracts issued under a SA resulting from this RFSA solicitation are subject to the requirements in the Security Requirement Check Lists (SRCL's) identified in each individual Request for Proposal issued by Clients. Standardized SRCL's are accessible through the CPSS web site as Common Security Requirement Checklists, but other SRCL's may be used. Each Request for Proposal will identify the SRCL that will apply to any resulting contract.

3. Reorganization of client

The Contractor's obligation to perform the Work will not be affected by (and no additional fees will be payable as a result of) the renaming, reorganization, reconfiguration, or restructuring of any Department. The reorganization, reconfiguration and restructuring of the Department includes the privatization of the Department, its merger with another entity, or its dissolution, where that dissolution is followed by the creation of another entity or entities with mandates similar to the original Department. In connection with any form of reorganization, Canada may designate another department or government body as the Contracting Authority or Technical Authority, as required to reflect the new roles and responsibilities associated with the reorganization.

4. Proactive Disclosure of Contracts with Former Public Servants

By providing information on its status, with respect to being a former public servant in receipt of a Public Service Superannuation Act (PSSA) pension, the Contractor has agreed that this information will be reported on departmental web sites as part of the published proactive disclosure reports, in accordance with Contracting Policy Notice: Contracting Policy Notice 2019-01: Changes to Contracting Limits and Approval of Contracts with Former Public Servants, and New Requirements for Accessibility.

5. No Responsibility to Pay for Work not performed due to Closure of Government Offices

Where the Contractor, its employees, subcontractors, or agents are providing services on government premises under the Contract and those premises are inaccessible because of the evacuation or closure of government offices, and as a result no work is performed, Canada is not responsible for paying the Contractor for work that otherwise would have been performed if there had been no evacuation or closure.

If, as a result of any strike or lock-out, the Contractor or its employees, subcontractors or agents cannot obtain access to government premises and, as a result, no work is performed, Canada is not responsible for paying the Contractor for work that otherwise would have been performed if the Contractor had been able to gain access to the premises.

6. Invoicing Instructions

  1. The Contractor must submit invoices in accordance with the information required in the General Conditions.
  2. The Contractor's invoice must include a separate line item for each subparagraph in the Basis of Payment provision and, if applicable, must show all applicable Task Authorization numbers.
  3. By submitting invoices, the Contractor is certifying that the goods and services have been delivered and that all charges are in accordance with the Basis of Payment provision of the Contract, including any charges for work performed by subcontractors.
  4. The Contractor must provide an electronic copy of each invoice and time sheet to the Technical Authority and to the Contracting Authority.

7. Federal Contractors Program for Employment Equity – Default by Contractor

The Contractor understands and agrees that, when an Agreement to Implement Employment Equity (AIEE) exists between the Contractor and Employment and Social Development Canada (ESDC)-Labour, the AIEE must remain valid during the entire period of the Contract. If the AIEE becomes invalid, the name of the Contractor will be added to the "FCP Limited Eligibility to Bid" list. The imposition of such a sanction by ESDC will constitute the Contractor in default as per the terms of the Contract.

8. Copyright In Material

  1. In this section, "Material" means anything that is created by the Contractor as part of the Work under the Contract that is required by the Contract to be delivered to Canada and in which copyright subsists, excluding any computer software code and all documentation manuals or guides intended to assist end users or technicians in respect of that code. “Material" does not include anything created by the Contractor before the award date of the Contract.
  2. Copyright in the Material belongs to Canada and the Contractor must include the copyright symbol and either of the following notice on the Material: © Her Majesty the King in right of Canada (year) or © Sa Majesté le Roi du chef du Canada (année).
  3. The Contractor must not use, copy, divulge or publish any Material except as is necessary to perform the Contract. The Contractor must execute any conveyance and other documents relating to copyright in the Material as Canada may require.
  4. The Contractor must provide at the request of Canada a written permanent waiver of moral rights, in a form acceptable to Canada, from every author that contributed to the Material. If the Contractor is the author of the Material, the Contractor permanently waives its moral rights in the Material.

9. Professional Services – General

  1. The Contractor must provide professional services on request as specified in this Contract. All resources provided by the Contractor must meet the qualifications described in the Contract (including those relating to previous experience, professional designation, education, language proficiency and security clearance) and must be competent to provide the required services by any delivery dates described in the Contract.
  2. If the Contractor fails to deliver any deliverable (excluding delivery of a specific individual) or complete any task described in the Contract on time, in addition to any other rights or remedies available to Canada under the Contract or the law, Canada may notify the Contractor of the deficiency, in which case the Contractor must submit a written plan to the Technical Authority within ten working days detailing the actions that the Contractor will undertake to remedy the deficiency. The Contractor must prepare and implement the plan at its own expense.

10. Replacement of Specific Individuals

In General Conditions 2035, the Article titled "Replacement of Specific Individuals" is deleted and the following applies instead:

Replacement of Specific Individuals

  1. If the Contractor is unable to provide the services of any specific individual identified in the Contract or in any Task Authorization to perform the services, the Contractor must within five working days of having this knowledge, the individual's departure or failure to commence Work (or, if Canada has requested the replacement, within ten working days of Canada's notice of the requirement for a replacement) provide to the Contracting Authority:
    1. the name, qualifications and experience of a proposed replacement immediately available for Work; and
    2. security information on the proposed replacement as specified by Canada, if applicable.

      The replacement must have qualifications and experience that meet or exceed those obtained for the original resource.

  2. Subject to an Excusable Delay, where Canada becomes aware that a specific individual identified under the Contract or in any Task Authorization to provide services has not been provided or is not performing, the Contracting Authority may elect to:
    1. exercise Canada's rights or remedies under the Contract or at law, including terminating the Contract in whole or in part for default under the Article titled "Default of the Contractor", or
    2. assess the information provided under (c) (i) above or, if it has not yet been provided, require the Contractor to propose a replacement to be rated by the Technical Authority. The replacement must have qualifications and experience that are similar or exceed those obtained for the original resource and be acceptable to Canada. Upon assessment of the replacement, Canada may accept the replacement, exercise the rights in (ii) (A) above, or require another replacement in accordance with this sub-article (c).

    Where an Excusable Delay applies, Canada may require (c) (ii) (B) above instead of terminating under the “Excusable Delay” Article. An Excusable Delay does not include resource unavailability due to allocation of the resource to another Contract or project (including those for the Crown) being performed by the Contractor or any of its affiliates.

  3. The Contractor must not, in any event, allow performance of the Work by unauthorized replacement persons. The Contracting Authority may order that an original or replacement resource stop performing the Work. In such a case, the Contractor must immediately comply with the order. The fact that the Contracting Authority does not order a resource to stop performing the Work does not relieve the Contractor from its responsibility to meet the requirements of the Contract.
  4. The obligations in this article apply despite any changes that Canada may have made to the Client's operating environment.

11. Safeguarding Electronic Media

  1. Before using them on Canada's equipment or sending them to Canada, the Contractor must use a regularly updated product to scan electronically all electronic media used to perform the Work for computer viruses and other coding intended to cause malfunctions. The Contractor must notify Canada if any electronic media used for the Work are found to contain computer viruses or other coding intended to cause malfunctions.
  2. If magnetically recorded information or documentation is damaged or lost while in the Contractor's care or at any time before it is delivered to Canada in accordance with the Contract, including accidental erasure, the Contractor must immediately replace it at its own expense.

12. Identification Protocol Responsibilities

The Contractor will be responsible for ensuring that each of its agents, representatives or subcontractors (hereinafter referred to as Contractor Representatives) complies with the following self-identification requirements:

  1. Contractor Representatives who attend a Government of Canada meeting (whether internal or external to Canada's offices) must identify themselves as Contractor Representatives prior to the commencement of the meeting, to ensure that each meeting participant is aware of the fact that the individual is not an employee of the Government of Canada;
  2. During the performance of any Work at a Government of Canada site, each Contractor Representative must be clearly identified at all times as being a Contractor Representative; and
  3. If a Contractor Representative requires the use of the Government of Canada's e-mail system in the performance of the Work, then the individual must clearly identify him or herself as an agent or subcontractor of the Contractor in all electronic mail in the signature block as well as under "Properties." This identification protocol must also be used in all other correspondence, communication, and documentation.
  4. If Canada determines that the Contractor is in breach of any obligation stated in this Article, upon written notice from Canada the Contractor must submit a written action plan describing corrective measures it will implement to eliminate the recurrence of the problem. The Contractor will have 5 working days to deliver the action plan to the Client and the Contracting Authority, and 20 working days to rectify the underlying problem.
  5. In addition to any other rights it has under the Contract, Canada may terminate the Contract for default if the corrective measures required of the Contractor described above are not met.

13. Dispute Resolution

  1. The parties agree to maintain open and honest communication about the Work throughout and after the performance of the contract.
  2. The parties agree to consult and co-operate with each other in the furtherance of the contract and promptly notify the other party or parties and attempt to resolve problems or differences that may arise.
  3. If the parties cannot resolve a dispute through consultation and cooperation, the parties agree to consult a neutral third party offering alternative dispute resolution services to attempt to address the dispute.
  4. Options of alternative dispute resolution services can be found on Canada’s Buy and Sell website under the heading “Dispute Resolution”.

14. Time Verification

Time charged and the accuracy of the Contractor’s time recording system are subject to verification by Canada, before or after payment is made to the Contractor. If verification is done after payment, the Contractor must repay any overpayment, at Canada’s request.

15. Joint Venture Contractor (if applicable)

  1. The Contractor confirms that the name of the joint venture is and that it is comprised of the following members:

    [Bidders must list all the joint venture members named in the Contractor's original bid].

  2. With respect to the relationship among the members of the joint venture Contractor, each member agrees, represents and warrants (as applicable) that:
    1. has been appointed as the "representative member" of the joint venture Contractor and has fully authority to act as agent for each member regarding all matters relating to the Contract;
    2. by giving notice to the representative member, Canada will be considered to have given notice to all the members of the joint venture Contractor; and
    3. all payments made by Canada to the representative member will act as a release by all the members.
  3. All the members agree that Canada may terminate the Contract in its discretion if there is a dispute among the members that, in Canada's opinion, affects the performance of the Work in any way.
  4. All the members are jointly and severally or solidarily liable for the performance of the entire Contract.
  5. The Contractor acknowledges that any change in the membership of the joint venture (i.e., a change in the number of members or the substitution of another legal entity for an existing member) constitutes an assignment and is subject to the assignment provisions of the General Conditions.
  6. The Contractor acknowledges that all security and controlled goods requirements in the Contract, if any, apply to each member of the joint venture Contractor.

16. Representations and warranties

The Contractor made statements regarding its own and its proposed resources experience and expertise in its bid that resulted in the award of the Contract [and issuance of TA’s]. The Contractor represents and warrants that all those statements are true and acknowledges that Canada relied on those statements in awarding the Contract [and adding work to it through TA’s]. The Contractor also represents and warrants that it has, and all its resources and subcontractors that perform the Work have, and at all times during the Contract Period they will have, the skills, qualifications, expertise and experience necessary to perform and manage the Work in accordance with the Contract, and that the Contractor (and any resources or subcontractors it uses) has previously performed similar services for other customers.

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