9. Contract amendments—Assessor Guidance Document—Supply Arrangement Requirements
9.01 Contract amendment—documentation
Copy of all contract amendments must be placed on file.
- Treasury Board (TB) Contracting Policy (sub-section 12.3.1)
Assessment guidance and notes
Without a copy of all contract amendments, it is not possible for the Contracting Authority to determine whether changes were made to the work to be performed, was there a change in milestone dates stated in the contract, etc. However, based on documentation on file, amendments to contracts may have been issued that were for administrative purposes only.
Examples of contract amendments that are of an administrative nature include, but are not limited to:
- Amendment(s) raised to change a funding code
- Amendment(s) raised to reduce the value of the contract to reflect the actual amount of work done (i.e. days or hours spent)
- Amendment(s) raised to correct an error in the original contract or previous contract amendment
| Type | Description | Rationale |
|---|---|---|
| Major non-conformance—policy (documentation) | Copy of contract amendment(s) that affect the contract value or that significantly change the scope of the work required are not on file and the Contracting Authority is unable to provide it. | Without a copy of these specific contract amendments, it is not possible to enforce the terms of the requirement and certify payment of any invoices. And it is not possible for the Assessor to confirm compliance with a number of subsequent elements. (Contravention of TB Contracting Policy sub-section 12.3.1) |
| Major non-conformance—procedural | Copy of the executed contract amendment on file is unsigned by the Contracting Authority or the Supplier or both. | Failure to sign the contract calls into question whether or not the contract amendment has been executed. |
| Major non-conformance procedural | Each time a Task Authorization or an amendment to a TA was issued, an amendment to the contract was issued. | The intent of the TA process is to issue a contract, with a total value based on the expected usage to be covered by the TAs. Contract amendments are intended to change the terms of the contract (e.g. exercising an option period). |
| Minor non-conformance | Contract file does not contain a copy of all contract amendments. However, based on other documentation on file, the missing amendment(s) were administrative in nature only. | Failure to comply with the requirement does not meet the criteria applicable to a major non-conformance.
Note: Recurrence of the finding related to lack of documentation on file, in either future assessments or during the assessment of a specific contract, may result in the issuance of a major non-conformance. |
| Observation (documentation) | Based on file documentation provided for assessment purposes herein it appears that no amendment was issued to exercise the option period(s). | 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 (other) | Amendment form used does not include a section which will allow the supplier to sign the amendment. | Failure to comply with the requirement does not meet the criteria to raise a minor or major non-conformance.
Note: Recurrence of this finding may result in the issuance of a major non-conformance. |
9.02 Contract amendment—date
The date that the amendment goes into effect must be before the expiry date of the contract.
Assessment guidance and notes
The amendment date shall be the date that the amendment was executed (i.e. the date that the amendment was signed).
| Type | Description | Rationale |
|---|---|---|
| Major non-conformance—procedural | Amendment was issued after the contract expired. | Amendments issued after the contract has expired represent an attempt to amend a legal document that does not exist. |
| Minor non-conformance | Copy of the executed contract amendment is signed by both parties but not dated. | Amendments that are not dated may not be legally enforceable. 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 Major non-conformance. |
9.03 Contract amendment—requirement details (general)
Contract amendment documents must contain all required components and must be consistent with the clauses stated in the contract.
- Public Services and Procurement Canada (PSPC) Supply Manual (sub-section 6.3 - Annex)
- Temporary Help Services for the National Capital Region
Assessment guidance and notes
When determining compliance to this element, Assessors must determine whether or not the all clauses and Annexes, stated in the contract, affected by the amendment have been updated appropriately. Examples of such a situation includes, but is not limited to:
- Contract includes specific clause for contract period and also includes Annex B, Basis of Payment includes a reference to the contract period. The amendment revises the contract period in the specific clause but fails to revise the Annex or vice versa
- Amendment changes the value of the contract. Annex B, Basis of Payment is revised appropriately but the Limitation of Expenditure clause is not revised
Temporary Help Services
PSPC does not have to approve the amendment. However, copy of the amendment must be send within 2 working days to tpsgc.pasat-apths.pwgsc@tpsgc-pwgsc.gc.ca for administration purposes. Contracts can be amended to extend up to a maximum of 24 consecutive weeks beyond the limit of 48 consecutive weeks.
Note
In the event of a discrepancy in the contract, such as one caused by a contract amendment that fails to update all clauses and Annexes appropriately, the clause “Priority of Documents” applies. In such cases, the Articles of Agreement (i.e. contract clauses) will supersede, for example, any changes made to an Annexe via a contract amendment.
| Type | Description | Rationale |
|---|---|---|
| Major non-conformance—policy (other) | There is a discrepancy between the clauses or Annexes stated in the contract amendment and the contract. | Payment of invoices against a contract where there are discrepancies between the contract and the contract amendment calls into question the certification done under Section 34 of the FAA. (Contravention of Section 34 of the FAA). |
| Major non-conformance—policy (other) | Temporary Help Services (THS) Contract was amended to extend contract period by more than 24 consecutive weeks beyond the limit of 48 consecutive weeks. | Documentation on file confirms that the extension required was significant. Such a change could have resulted in a new search being required, different responses from Suppliers (i.e. new resource being offered, responses being provided by Suppliers that did not previously respond, etc.), different evaluation results and different award. (Contravention of THS rules available at Temporary help services at a glance) |
| Major non-conformance—policy (other) | THS Contract amendment(s) fail to update all required clauses. | 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). |
| Observation (documentation) | Compliance to this requirement cannot be determined because a copy of the contract amendment(s) is (are) not on file. | If the contract amendment was not on file, then a Major non-conformance would already have been raised against a previous element (i.e. element 9.01: Contract Amendment—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 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. |
9.04 Changes to statement of work / work description
The rationale for contract amendments that significantly changes the Statement of work (SOW) or work description specified in the original contract must be documented on file and be supportable.
- TB Contracting Policy (sub-section 10.8.19 and 12.9.1)
Assessment guidance and notes
If the SOW included in the bid solicitation document and subsequently in the contract requires significant changes, the Contracting Authority must cancel the contract and start a new contract process (conduct a new search, issue new bid solicitation document, etc.). The only exception to the above rule is a case where the Contracting Authority included an incorrect SOW or work description in the original contract. In this case, the amendment is administrative in nature and was raised to correct an error in the original contract.
| Type | Description | Rationale |
|---|---|---|
| Major non-conformance—policy (other) | Amendment was issued that significantly changed the work required or the duties to be performed. | Documentation on file confirms that the change in work required was significant. Such a change could have resulted in a new search being required (based on a new category or level or both), different responses from Suppliers (i.e. new resource being offered, responses being provided by Suppliers that did not previously respond, etc.), different evaluation results and different award. (Contravention of TB Contracting Policy sub-section 10.8.19) |
| Observation (documentation) | Compliance to this requirement cannot be determined because a copy of the contract amendment(s) is (are) not on file. | If the contract amendment was not on file, then a Major non-conformance would already have been raised against a previous element (i.e. element 9.01: Contract Amendment—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 contract is not on file. | If the contract 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 a copy of the SOW. | If the contract on file does not contain a copy of the SOW, then 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. |
9.05 Category and level
Contracting Authority must not change the category (ies) or level(s) or both as stated in the original contract.
- TB Contracting Policy (section 2(a), sub-section 10.8.19)
Assessment guidance and notes
A change to the level(s) or category (ies) or both would have invalidated the original search conducted.
The only exception to the above rule is a case where the original contract refers to the wrong category or level. In this case, the amendment is administrative in nature and was raised to correct an error in the original contract.
| Type | Description | Rationale |
|---|---|---|
| Major non-conformance—policy (other) | Amendment(s) issued that change the category (ies) or level(s) or both stated in the contract. | Changing the category (ies) or levels in the contract invalidate the search conducted and would, almost certainly, result in a different list of potential Suppliers being returned from a search. |
| Observation (documentation) | Compliance to this requirement cannot be determined because a copy of the contract amendment(s) is (are) not on file. | If the contract amendment(s) is (are) not on file, then a Major non-conformance would already have been raised against a previous element (i.e. element 9.01: Contract Amendment—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 contract is not on file. | If the contract 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 (other) | Compliance to this requirement cannot be determined because the contract on file does not contain reference to the category or level required. | If the contract on file does not contain reference to the category or level required, then 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. |
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