8. Contract—Assessor Guidance Document—Supply Arrangement Requirements
8.01 Contract—documentation
Executed copy of the contract must be on file.
- Financial Administration Act (section 32)
- Treasury Board (TB) Contracting Policy (sub-section 12.3.1)
Assessment guidance and notes
Without a copy of the contract, it is not possible for the Contracting Authority to determine what work was to be performed and by whom, what the rate to be charged was, how payment was to be made, etc. In addition, without a contract, the Contracting Authority or the client (if applicable) cannot certify that the work was performed in accordance with the terms of the contract under section 32 of the Financial Administration Act (FAA).
Note
Contracts are considered to be executed if they are signed by the person authorized to do so by the department/agency that originated the contract. The assessor shall assume that the person who signed the contract has the authority to do so.
| Type | Description | Rationale |
|---|---|---|
| Major non-conformance—policy (documentation) | Copy of the contract is not on file and the Contracting Authority is unable to provide it. | Without a copy of the contract it is impossible to enforce the terms of the requirement and certify payment of any invoices (Contravention of Section 32 of the FAA and TB Contracting Policy sub-section 12.3.1) |
| Major non-conformance—procedural | Copy of the executed contract on file is unsigned. | Failure to sign the contract calls into question whether or not the contract has been executed. |
| Minor non-conformance | Copy of the executed contract is signed but not dated. | Failure to comply with the requirement does not meet the criteria applicable to a Major non-conformance.
Note: Recurrence of this finding may result in the issuance of a Major non-conformance. |
8.02 Contract—maximum value
Contract value, inclusive of all amendments, applicable taxes, travel and living expenses, travel status time to be paid, options, etc. must be consistent with the requirement value selected in the search criteria. Therefore, the contract value (inclusive of all amendments, applicable taxes, travel and living expenses, travel status time to be paid, options, etc.) cannot exceed $40k if the "does not exceed $40k" rule has been invoked; the North American Free Trade Agreement (NAFTA) threshold or the Canada Korea Free Trade Agreement (CKFTA) (effective July 1st, 2020) if ProServices Methods of Supply (MoS) has been used; or $3,75M for all requirements using all other MoSs (unless otherwise indicated herein). For Temporary Help Services (THS) if competitive method 1—lowest cost is used, contract value cannot exceed $400K. Competitive method 1—right-fit is used, contract value cannot exceed $105,700K. Competitive method 2, no limit but anything over $1M must be reviewed by Public Services and Procurement Canada (PSPC) THS Team.
- Government Contract Regulations (section 6)
- TB Contracting Policy (sub-section 2d, 10.2.1, 10.2.7, Schedule 3 of Appendix C)
- Common business rules in the Centralized Professional Services System ePortal
- Temporary Help Services for the National Capital Region
Assessment guidance and notes
The Assessor must determine whether or not the requirement value used to conduct the search is consistent with the value of the contract(s) awarded inclusive of all amendments, applicable taxes, travel and living expenses, travel status time to be paid, options, etc. The Contracting Authority must, when issuing contract amendments, monitor the total revised value of the contract so as to not exceed the applicable maximum value threshold.
If the search was conducted based on the total value being less than $3,75M and the total value of all contract awarded exceeds $3,75M, the procurement should have been managed by Public Services and Procurement Canada (PSPC) because the total value of the requirement exceeds the client department's authority as stipulated in Schedule 3, Appendix C of the Treasury Board Contracting Policy.
Note
Certain departments (Shared Services Canada, Transport Canada and Fisheries and Oceans) have a higher delegated authority (refer Schedule 3, Appendix C of the Treasury Board Contracting Policy). Certain organizations (e.g. Office of the Chief Electoral Officer) are exempt from the limitations stated in Schedule 3, Appendix C of the Treasury Board Contracting Policy.
If the search was conducted based on the total value of all contracts awarded being less than NAFTA or CKFTA threshold and the total value of the contracts exceeded the NAFTA or CKFTA threshold, different business rules governing the procurement should have been applied (i.e. number of suppliers invited, minimum bidding period, requirement for an NPP, etc.).
If the search was conducted based on the total value of the contract being less than $40k and the contract value exceeded this amount, the procurement should have been done competitively. This also could give the appearance that the use of the fourth exception (i.e. requirements valued at under $40,000) in the Government Contracting Regulations (GCRs) to set aside the competitive bidding process was used, which contravenes the Centralized Professional Services System (CPSS) ePortal business rules.
| Type | Description | Rationale |
|---|---|---|
| Major non-conformance—policy (other) | Contract value (inclusive of all amendments, applicable taxes, travel and living expenses, travel status time, options, etc.) exceeded $3,75M.
Search results were based on the value of the requirement being between the NAFTA or CKFTA threshold and $3,75M. |
Use of the incorrect requirement value will have a direct impact on the search results returned. If the correct criteria had been used, the list of Suppliers returned would be different. (Contravention of TB Contracting Policy sub-section 16.10.3) |
| Major non-conformance—policy (other) | Contract value (inclusive of all amendments, applicable taxes, travel and living expenses, travel status time, options, etc.) exceeded the NAFTA or CKFTA threshold applicable at the time the contract was awarded.
Search results were based on value of the requirement not exceeding the NAFTA or CKFTA threshold. |
Contracts whose value exceeds the NAFTA or CKFTA threshold represents a failure to comply with Canada's obligations under NAFTA or CKFTA. (TB Contracting Policy, sub-sections 2 d. and 10.2.7) |
| Major non-conformance—policy (other) | Contract value (inclusive of all amendments, applicable taxes, travel and living expenses, travel status time, options, etc.) exceeded $40k.
Search results were based on client invoking the "Does not exceed $40k" rule. |
Exception used does not fit the criteria described in TB Contracting Policy. (TB Contracting Policy, sub-section 10.2.1 (b)) |
| Major non-conformance—policy (other) | Contract value (inclusive of all amendments, applicable taxes, travel and living expenses, travel status time, options, etc.) exceeds the contracting limits for the organization. | Contract value (inclusive of all amendments, applicable taxes, travel and living expenses, travel status time, options, etc.) exceeds the Basic Contracting Limits for the organization as set out in TB Contracting Policy. (TB Contracting Policy, Appendix C, Schedule 3) |
| Observation (documentation) | Compliance to this requirement cannot be determined because a copy of the contract is not on file. | If the contract document was not on file, then a Major non-conformance would already have been raised against a previous element (i.e. element 8.01: Contract—Documentation).
Note: Recurrence of this finding may result in the issuance of a non-conformance. |
| Observation (documentation) | Compliance to this requirement cannot be determined because a copy of all contract amendments is not on file. | If all contract amendment documents were not on file, then a Major non-conformance will be raised against another element (i.e. element 9.01: Contract Amendments—Documentation).
Note: Recurrence of this finding may result in the issuance of a non-conformance. |
| Observation (documentation) | Compliance to this requirement cannot be determined because a copy of neither the initial nor the final search results is on file. | If either the initial or final search results are not on file, then a Major non-conformance would already have been raised against a previous element (i.e. element 2.01: Search Results—Documentation).
Note: Recurrence of this finding may result in the issuance of a Major non-conformance. |
8.03 Contract—requirement details (general)
Contract documents must contain all required components and must be consistent with the resultant contract clauses stated in the bid solicitation document.
- TB Contracting Policy (sub-section 4.2.11, 4.2.12, 4.2.23, 5.2.1, 8.4.1, 12.1.2, 12.4.1, 12.5.3, 12.11.10 and 12.12.1)
- PSPC Supply Manual (sub-section 3.35)
- Temporary Help Services for the National Capital Region
Assessment guidance and notes
Contract documents for all Methods of Supply (MoS)s, with the exception of ProServices and THS, must use Part 7—Resulting Contract Clauses from the "High Complexity Bid Solicitation and Resulting Contract Template (HC)" bid solicitation template available in the Standard Acquisition Clauses and Conditions (SACC) Manual. Contract documents issued using the ProServices MoS must use Part 6—Resulting Contract Clauses from the "Medium Complexity Bid Solicitation and Resulting Contract Template (MC)" bid solicitation template available in the SACC Manual. Part 7 and 6 from the HC and MC bid solicitation templates respectively, contain clauses that must appear in the contract document and clauses that are only required in specific circumstances. When determining compliance to this element, Assessors must determine whether or not all required components of the contract, including but not limited to all required clauses (including the Task Authorization (TA) clause if applicable), annexes, Security Requirement Checklist (SRCL), etc., have been included in the contract. For THS template, clients are directed to use THS request for proposal templates at Temporary Help Services templates for client departments.
Note
- Basis of Payment - Annex B, Basis of Payment, of the "High Complexity Bid Solicitation and Resulting Contract Template (HC)" for the Task Based Informatics Professional Services (TBIPS) and Task and Solutions Professional Services (TSPS) MoS does not include a column for level of effort. Therefore, a non-conformance shall not be raised if the Annex B, Basis of Payment does not include a level of effort
- Task Authorizations (TAs) are used when all of the work or a portion of the work will be performed on an “as and when requested basis”. Contracts with TAs are used in service contracting situations when there is a defined need by a client to rapidly have access to one or more categories of service(s) that are expected to be needed on a repetitive basis during the period of the contract. Under contracts with TAs, the work to be carried out can be defined but the exact nature and timeframes of the required services, activities and deliverables will only be known as and when the service(s) will be required during the period of the contract
- The TA form referred to in the PSPC Supply Manual (form PWGSC-TPSGC 572) does not include a space for calculating the value including applicable taxes
- If travel is required, the requirement must be included in the contract and must be paid in accordance with the Treasury Board travel policy. The National Joint Council Travel Directive applies to travel costs incurred by contractors when these costs are a specific element of the contract
- Travel status time is defined as the time spent by resource(s) travelling to and from specific pre-authorized work assignments but does not cover commuting time spent by resource(s). The provision for travel time status must be in the bid solicitation document and be incorporated into the contract. The provision must define the rate that travel status time is being paid, the minimum distance between the pre-authorized work assignment and the resource’s work location (if applicable) and how travel time for partial days is calculated (if applicable)
In accordance with the CPSS ePortal Common Business Rules, travel status time is calculated based on a maximum of 50% of the all-inclusive per diem rate.
| Type | Description | Rationale |
|---|---|---|
| Major non-conformance—policy (documentation) | Contract document fails to include all required components (clauses, parts, annexes, etc.). | TB Contracting Policy requires that contract documents contain all required components (clauses, parts, annexes, etc.) that ensure that the contracting process will stand up to public scrutiny and meet Canada's obligations under the various free trade agreements. (Contravention of TB Contracting Policy sub-sections 4.2.11, 4.2.12, 4.2.23, 5.2.1, 8.4.1, 12.1.2, 12.4.1, 12.5.3, 12.11.10, 12.12.1). |
| Major non-conformance—policy (other) | Contract document includes clauses, Annexes, etc. that contradict those stated in the bid solicitation document. | Refer above rationale |
| Major non-conformance—procedural | Contract document fails to provide all required information related to the category (or categories) or level or both including name of category, level, per diem rate, etc. | Payment of invoices against a contract that does not provide complete information regarding the category or categories calls into question the certification done under Section 34 of the Financial Administration Act (FAA). (Contravention of Section 34 of the FAA) |
| Major non-conformance—procedural | SRCL attached to the contract, refer Part D, was not signed as approved by the Contract Security Program (CSP), PSPC and/or the Organization Project Authority, Organization Security Authority or Procurement Officer. | TB Policy on Government Security requires that an SRCL attached to the bid solicitation is approved before the solicitation document is issued. (Contravention of TB Policy on Gov't Security sub-section 5.9 and Appendix A.6) |
| Observation (documentation) | Compliance to this requirement cannot be determined because a copy of the contract is not on file. | If the contract is not on file, then a Major non-conformance would already have been raised against a previous element (i.e. element 8.01: Contract—Documentation).
Note: Recurrence of this finding may result in the issuance of a Major non-conformance. |
| Observation (documentation) | Compliance to this requirement cannot be determined because a copy of the bid solicitation document is not on file. | If the bid solicitation document is not on file, then a Major non-conformance would already have been raised against a previous element (i.e. element 3.01: Bid Solicitation—Documentation).
Note: Recurrence of this finding may result in the issuance of a Major non-conformance. |
8.04 Statement of work/work description
Statement of work (SOW) or work description stated in the contract must match that specified in the bid solicitation document.
- TB Contracting Policy (sub-section 10.8.19)
- Financial Administration Act (sub-section 34)
Assessment guidance and notes
Changes to the SOW or work description between the bid solicitation issued and the contract awarded could result in changes to the category (ies) or level(s) or both used in the search conducted, the evaluation criteria used, the resource(s) offered by the Supplier in response to the bid solicitation, the evaluation results and ultimately a change to the contract awarded.
Note
Such a situation results in a non-conformance even if the Contractor agrees to the changes.
| Type | Description | Rationale |
|---|---|---|
| Major non-conformance—policy (other) | Significant modifications (additions or deletions) to the SOW were incorporated into the contract in comparison to the SOW specified in the bid solicitation. | Significant modifications include ones that could have resulted in any of the changes noted above, which, in all cases, could have resulted in a change to the contract(s) awarded. (Contravention of TB Contracting Policy sub-section 10.8.19) |
| Major non-conformance—policy (documentation) | Contract document does not contain a SOW. | Payment of invoices against a contract that does not describe the work to be performed calls into question the certification done under Section 34 of the FAA. (Contravention of Section 34 of the FAA) |
| Minor non-conformance | Minor modifications (additions or deletions) to the SOW, contained in the bid solicitation, were incorporated into the contract. Modifications made would not have had an impact on decision by the supplier to respond nor would have had a material effect on any responses submitted. | Failure to comply with the requirement does not meet the criteria applicable to a major non-conformance.
Note: Recurrence of this finding may result in the issuance of a major non-conformance. |
| Observation (documentation) | Compliance to this requirement cannot be determined because a copy of the contract is not on file. | If the contract document was not on file, then a Major non-conformance would already have been raised against a previous element (i.e. element 8.01: Contract—Documentation).
Note: Recurrence of this finding may result in the issuance of a non-conformance. |
| Observation (documentation) | Compliance to this requirement cannot be determined because a copy of the bid solicitation document is not on file. | If the bid solicitation document was not on file, then a Major non-conformance would already have been raised against a previous element (i.e. element 3.01: Bid Solicitation—Documentation).
Note: Recurrence of this finding may result in the issuance of a non-conformance. |
8.05 Category and level
Category and level specified in the contract must match that specified in the search conducted and the bid solicitation issued (if applicable).
- Financial Administration Act (sub-section 34)
- TB Contracting Policy (section 2(a), sub-section 10.8.19)
Assessment guidance and notes
The category or the level or both cannot be changed once the bid solicitation document is issued. A change to the level or category would invalidate the original search conducted.
Note
This element applies to competitive requirements and requirements where the "does not exceed $40k" rule has been invoked.
| Type | Description | Rationale |
|---|---|---|
| Major non-conformance—policy (other) | Category or level stated in the contract differs from either the bid solicitation sent to Suppliers or the initial or final search results or both. | Changing either the level or the category would invalidate the search conducted and would, almost certainly, result in a different list of potential Suppliers being returned from a search. In addition, the criteria used to determine compliance of the resource offered would also change significantly. (Contravention of TB Contracting Policy sub-section 10.8.19 and section 2(a)) |
| Observation (other) | Contract document does not contain reference to the category or levels required. | If contract document fails to provide all required information related to the category (ies) or level or both including name of category, level, per diem rate, etc., then a Major non-conformance would already have been raised against a previous element (i.e. element 8.03: Contract—requirement details (general)). |
| Observation (documentation) | Compliance to this requirement cannot be determined because a copy of the contract is not on file. | If the contract document was not on file, then a Major non-conformance would already have been raised against a previous element (i.e. element 8.01: Contract—Documentation).
Note: Recurrence of this finding may result in the issuance of a non-conformance. |
| Observation (documentation) | Compliance to this requirement cannot be determined because a copy of the bid solicitation is not on file. | If the bid solicitation was not on file, then a Major non-conformance would already have been raised against a previous element (i.e. element 3.01: Bid Solicitation—Documentation).
Note: Recurrence of this finding may result in the issuance of a Major non-conformance. |
| Observation (documentation) | Compliance to this requirement cannot be determined because a copy of either the initial or final search results is not on file. | If the bid solicitation was not on file, then a Major non-conformance would already have been raised against a previous element (i.e. element 2.01: Search Results—Documentation).
Note: Recurrence of this finding may result in the issuance of a Major non-conformance. |
8.06 Security clearance
Security clearance specified in the contract must match that specified in the search conducted and the bid solicitation issued (if applicable).
- TB Contracting Policy (section 2(a), sub-section 10.8.19)
Assessment guidance and notes
The security clearance required cannot be changed once the bid solicitation is issued. In the event that the security clearance specified was determined to be in error, the bid solicitation must be cancelled, a new search conducted based on the correct security clearance required and a new bid solicitation document issued. For example, if the original search was conducted based on the security clearance being "Secret", a change to "None" would result in different search results. This would have a domino effect in terms of affecting the Suppliers responding, resources being proposed and potentially change the award process.
The security clearance of a resource remains with that resource. However, a resource can only hold as high a security clearance with a Supplier as that Supplier has. For example, a resource has Top Secret security clearance. If Firm A wishes to offer this resource and Firm A only has a security clearance at the Secret level, then Firm A can only offer the resource against a bid solicitation that requires a security clearance of Secret or less. Also, in the example above, if the resource has a Top Secret clearance with Firm A and the resource is offered by Firm B, who is cleared to NATO Top Secret as verified by PSPC security, then the security clearance from Firm A can be applied to Firm B for assessment purposes.
Note
Contract clauses in the bid solicitation templates—High Complexity and Medium Complexity require that the SRCL (which states the security clearance required) be attached to the contract. Therefore, as long as the SRCL is attached to the contract and the security clearance stated matches that stated in the bid solicitation document, this requirement will be met.
- Documentation on file from PSPC security that confirms a request to "duplicate" the security clearance of a resource from one Offeror to another is sufficient proof that a resource has the required security clearance. The Assessor shall assume that the Offeror in question has a security clearance level at least at the level specified in the duplication request
- The requirements stated in this element apply to competitive requirements and those that invoke the "does not exceed $40k" rule
| Type | Description | Rationale |
|---|---|---|
| Major non-conformance—procedural | Security clearance stated in the contract differs from the initial search results or the bid solicitation document sent to Suppliers. | Change to the security clearance level required would invalidate the search conducted and would, almost certainly, result in a different list of potential Suppliers being returned from a search and could result in a change to the Supplier issued the contract. |
| Observation (documentation) | Compliance to this requirement cannot be determined because a copy of the contract is not on file. | If the contract document was not on file, then a Major non-conformance would already have been raised against a previous element (i.e. element 8.01: Contract—Documentation).
Note: Recurrence of this finding may result in the issuance of a non-conformance. |
| Observation (documentation) | Compliance to this requirement cannot be determined because the contract on file does not contain the required security clauses. | If the contract document does not contain the required clauses, a Major non-conformance would already have been raised against a previous element (i.e. element 8.03: Contract Requirement Details (general).
Note: Recurrence of this finding may result in the issuance of a non-conformance. |
| Observation (documentation) | Compliance to this requirement cannot be determined because a copy of the bid solicitation document is not on file. | If the bid solicitation document was not on file, then a Major non-conformance would already have been raised against a previous element (i.e. element 3.01: Bid Solicitation—Documentation).
Note: Recurrence of this finding may result in the issuance of a non-conformance. |
| Observation (documentation) | Compliance to this requirement cannot be determined because a copy of either the initial or final search results is not on file. | If either the initial or final search results are not on file, then a Major non-conformance would already have been raised against a previous element (i.e. element 2.01: Search Results—Documentation).
Note: Recurrence of this finding may result in the issuance of a Major non-conformance. |
8.07 Security requirement—contract
Client departments and contracting authorities must submit copies of resulting contractual documentation (call-up, contract, etc.) containing security requirements resulting from contract award to CSP of Public Services and Procurement Canada (PSPC), at tpsgc.ssicontrats-isscontracts.pwgsc@tpsgc-pwgsc.gc.ca.
- TB Contracting Policy s.s. 4.2.10, 11.3
- Security requirements for contracting with the Government of Canada (chapter 2)
Assessment guidance and notes
The Contracting Authority
- Reviews Security Requirement Check List (SRCL) submitted by the Departmental client
- Ensures client signed box 13 & 14
- Signs Box 16 of the SRCL
- Includes security requirements in contracting documentation using appropriate security clauses
- Verify the suppliers meet contract security requirements (contact CSP client service center: ssi-iss@tpsgc-pwgsc.gc.ca
- Provides the CSP with copies of the SRCLs, Security classification guides and all awarded contracts, even when using the common (pre-approved) SRCLs
- Reminds clients of the need for security classification guides or IT security plan when multiple security levels apply
| Type | Description | Rationale |
|---|---|---|
| Major non-conformance—policy (documentation) | Copy of the required documentation (i.e. email) to confirm that the contract was send to CSP is not on file. | Copy of the required documentation (i.e. email) to confirm that the contract was sent to CSP is not on file and the Contracting Authority is unable to provide it. (Contravention of TB Contracting Policy sub-section 4.2.10 and 11.3) |
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