Legislation and Agreements

Canadian statutes and case law, provincial legislation, trade agreements and finally internal policies dictate the rules that New Brunswick public sector entities have to follow when procuring goods, services or construction services. This legal environment requires that the public procurement process be conducted in a fair, open and transparent manner.
 

Over the past couple of decades, the Canadian courts have ruled on numerous cases involving the conduct of the solicitation process. The Supreme Court of Canada has stated that the integrity of the solicitation process must be upheld. These rulings have established a number of principles that are relevant to public procurement in this Province. Some of the more notable principles are:

• When a supplier or contractor submits a qualifying bid or proposal in response to a solicitation for bid submissions, a binding contract, known as Contract “A”, is automatically established between the government entity and the bidder. This contract requires the procuring entity to treat all bidders fairly and requires the bidder to honour his bid.
• A Request for Proposals (RFP) is considered to be a solicitation.
• The procuring entity is required to evaluate bids and make awards based on criteria set out in the solicitation documents. In the absence of other specific criteria, the award is made to the lowest priced compliant bid.
• A solicitation cannot be arbitrarily cancelled after it is closed without justification.
• General statements such as “lowest or any bid not necessarily accepted” do not give us the right to the procuring entity do as we wish. The principles of fair treatment must be respected.
• The awarded contract, Contract “B”, must be substantially the same as Contract “A” (i.e. the solicitation). Procuring entities are not permitted to negotiate a different contract (unless specified otherwise in the solicitation documents).  
• All relevant information must be disclosed in the solicitation documents.
• The procuring entity’s intentions regarding the evaluation of bids and award of the contract must be clearly defined in the solicitation documents.
   

One piece of legislation governs all public procurement of goods, services and construction services in New Brunswick. Service New Brunswick is responsible to administer this legislation. The Goods and Services Regulation defines the procurement processes and rules for the purchase of goods and services, while the Construction Services Regulation defines the processes and rules for the purchase of construction services. Provincial legislation defines the procurement processes and rules; however it cannot overrule the case law established by the courts. This act is consistent with the trade agreements to which the Province is a party.

In addition to the Procurement Act and Regulations, public procurement is governed by trade agreements to ensure that the process is open, fair and transparent. Trade agreements were created to improve market access for the goods and services that are to be purchased by reducing barriers to labour mobility, investments, energy, agriculture, and government procurement. Each agreement deals with different rules, exemptions and scope.
 

The main domestic agreements that apply to procurement of goods, services and construction services in New Brunswick are:

There are currently three international trade agreements:

The Atlantic Standard Terms & Conditions were developed by the four Atlantic Provinces to provide suppliers with a common set of terms & conditions that apply to most Atlantic government solicitations. Where applicable, in the event of any conflict between these terms & conditions and the solicitation documents, the solicitation documents shall have precedence and will be assumed to be correct.

• Standard Terms and Conditions

For more information on selling to governments in Atlantic Canada please see

• Atlantic Supplier Development