December 5, 2016
It’s been a long time coming, but Newfoundland and Labrador is finally getting new public procurement legislation. On November 29, 2016, Bill 46, a new Newfoundland and Labrador Public Procurement Act to replace the 1981 Public Tender Act, passed third reading. Motivated by a 2008 report, “Review of Government’s Procurement Legislation, Policies and Processes”, the new Act will modernize the procurement framework in Newfoundland and Labrador, result in departmental reorganization of Service Newfoundland and Labrador and create new procurement policies.
The effective date of the Act isn’t yet known, and the regulations that will provide much of the detail to implement the new Act aren’t yet drafted, but it’s likely both will come in 2017. In the meantime, here are five key aspects of the new NL public procurement legislation:
Shift from low price to value. The biggest change the new Act will implement: a shift from getting the best price to getting the best value. The present statute’s focus on the “preferred bidder” as the lowest bid has made public bodies feel compelled to award contracts to the lowest qualified bid. The new Act’s change in focus to “best value” from “preferred bidder” should ensure public bodies can give full consideration to the best value, not just the lowest bid, in its decision to award a tender.
Greater consistency. Oversight by a Chief Procurement Officer will allow for greater consistency across all public bodies in tender processes, evaluation and award. The Act establishes the new position of Chief Procurement Officer as the head of the renamed Public Procurement Agency. Appointed by Cabinet, the Chief will publish procurement policies, establish an electronic notification system, maintain oversight of public bodies’ procurement activities, develop standardized procurement procedures, and establish an effective supplier complaint procedure. This complaint process will remove the reticence of unsuccessful bidders to challenge an award and while it may lead to more administrative challenges, it may result in fewer – and more expensive and time consuming – lawsuits. The Act also establishes a new Procurement Advisory Council to provide advice and make recommendations to the Minister of Service Newfoundland Labrador respecting procurement-related matters.
Increased transparency. Public bodies will need to ensure they have properly skilled procurement staff to comply with the requirements of the new Act. The new Act will require public bodies to follow certain procurement practices and procedures, adopt procurement standards and meet reporting obligations set out in the new Act. The head of a public body will be required to ensure that any procurement is documented, is within the public body’s budgetary allocation, is carried out by a knowledgeable staff, that the process is carried out within the statutory framework (i.e. the Act, regulations and policies), and that an annual plan is filed with the newly created Public Procurement Agency. Within 30 days of an award, the public body must post the award on the electronic notification system.
More breadth. The Act applies to all public bodies, including government departments, school boards, health boards, academic institutions, municipalities, crown corporations and government agencies, in their acquisition of goods, leasing space, services and public works. The present statue exempts certain services, including legal, architectural, engineering, and accounting, from the tender requirement. The new Act redefines “professional services” as legal services and financial services (credit and money) and makes them subject to a Treasury Board policy. Services such as architectural, engineering and accounting are no longer considered “professional services” and will be treated the same as goods.
Some potential glitches. The proposed Act includes two definitions that could cause interpretation issues down the road unless addressed before the Act takes effect:
Please contact your McInnes Cooper lawyer or any member of the Government & Institutions Team @ McInnes Cooper to discuss this topic or any other legal issue.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
© McInnes Cooper, 2016. All rights reserved. McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it. You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Email us at [email protected] to request our consent.
Apr 12, 2023
The Supreme Court of Nova Scotia has made it clear that, while the burden is high, pre-emptively vacating or discharging a builders’ lien is a…
Mar 16, 2023
We updated this publication on March 30, 2023. On January 1, 2023, the Prohibition on the Purchase of Residential Property by Non-Canadians…
Jan 19, 2023
We updated this publication on March 29, 2023. Beginning April 30, 2023, both Canadian and non-Canadian trustees, partners of a partnership,…
May 2, 2022
On April 14, 2022, the New Brunswick Court of Appeal released its decision in Royal Bank of Canada v. Estate of Susan Lynn Williams, revisiting…
Mar 4, 2022
On December 17, 2021, New Brunswick’s Local Governance Reform Act (Bill 82) amending the N.B. Local Governance Act (and other related acts and…
Nov 19, 2021
To help realtors better prepare their clients to ensure smooth real estate transactions with timely closings, here are the answers to the 10…
Nov 5, 2021
Purchasing commercial real estate as an investment, as a component of a business startup or as one asset in the share purchase of an existing…
Sep 9, 2021
This publication has been updated as at March 7, 2022. The New Brunswick Construction Remedies Act, substantially came into effect on…
Jul 27, 2021
Canadian entities regularly contract with foreign companies to provide services in Canada. To complete its obligations under the contract, the…
Jan 20, 2021
In the first update to the CCDC 2 since 2008, in December 2020 the Canadian Construction Documents Committee (CCDC) published the CCDC 2 (2020).…
Aug 12, 2020
This publication has been updated as of May 5, 2021. The ongoing COVID-19 pandemic has led many employees to continue working from home, by…
May 14, 2020
This publication has been updated as of April 23, 2021. Employers that hire and employ temporary foreign workers must comply with many and…
Mar 10, 2020
The global COVID-19 (a.k.a. Coronavirus or SARS-CoV-2) outbreak has implications for many commercial relationships, its evolving nature and…
Feb 4, 2020
Canada’s construction industry is abuzz with the latest innovation in lien legislation. Prompt payment requirements are being added to…
Aug 8, 2019
This publication has been updated as at January 12, 2022. Canadian provinces are looking to immigration as a solution to labour market…
Apr 29, 2019
The growing global population is feeding global demand for seafood. Growing demand is likely to drive investment, particularly mergers and…
Sep 28, 2018
Immigration is one of the key solutions to looming (and current) worker shortages in Canada. But an employer that hires a foreign worker must…
Sep 10, 2018
As of January 2019, incorporating a limited company in N.S. will be more economical. On September 7, 2018, the N.S. government announced it’s…
Jun 29, 2018
The Crown’s duty to consult Indigenous Peoples has evolved considerably since the Supreme Court of Canada’s first detailed articulation of…
Jun 21, 2018
Lawyers regularly encourage clients to be proactive and discuss potential issues with third parties before they become real problems. But in the…
Jun 13, 2018
Businesspeople (and their legal counsel) are on the road more than ever before: according to Statistics Canada, while Canada-U.S. traffic is…
Apr 26, 2018
The N.S. Court of Appeal has reached two decisions ending one employee’s quest for coverage of the costs of his medical marijuana – at least…
Apr 17, 2018
This publication has been updated as at January 12, 2023. There’s no shortage of media coverage about a doctor shortage in Canada and the…
Feb 21, 2018
On February 15, 2018, the Supreme Court of Canada decided a trustee’s fiduciary duty includes an obligation to inform beneficiaries of the…
Dec 18, 2017
The answer to the question, “What’s employers’ rationale for implementing workplace drug and alcohol testing?” is pretty…
Nov 20, 2017
October 2, 2017 marked the end of the consultation period relating to the taxation of private corporation proposals the Department of Finance…
Nov 17, 2017
It’s official: as of October 31, 2017, “facilitation payments” contravene Canada’s Corruption of Foreign Public Officials Act (CFPOA).…
Nov 16, 2017
Corporations are the leading business vehicle in modern commerce. For startups, properly structuring and incorporating is critical to avoid…
Oct 11, 2017
The fourth round of NAFTA negotiations is set to start on October 11, 2017. But in the meantime, the Canada-European Union Comprehensive…
Aug 16, 2017
In the not-so-distant past, Canadian enforcement of its anti-corruption and anti-bribery legal regime has been relatively laid-back. But the…
Aug 4, 2017
On July 18, 2017, Canada’s Minister of Finance released proposed changes to the Income Tax Act (Canada) that, if implemented, will mark one of…
Jul 28, 2017
All stakeholders in any major project development already know that adequate consultation before - rather than after - a project is approved is…
Jul 18, 2017
On July 12, 2017, the Federal Court of Canada made it clear that there are but two ways to avoid a tariff set by the Copyright Board of Canada…
Jul 13, 2017
When growing your business, you face many decisions, including choosing the business structure that is right for you. Your legal team can be…
Jul 11, 2017
The Canada-European Union Comprehensive Economic Trade Agreement (CETA) is making waves in Canada, and for good reason: it casts the net of…
Jul 10, 2017
The legal landscape of cannabis (a.k.a. marihuana, weed, pot …) is changing, both reflecting - and contributing to - more relaxed attitudes…
May 26, 2017
On May 19, 2017, the Supreme Court of Canada agreed to hear the appeal of the Federal Court of Appeal’s 2016 decision in Canada v Mikisew Cree…
Apr 28, 2017
On April 24, 2017, the N.S. Government issued regulations that will finally allow the Builders’ Lien Act amendments permitting early release…
Apr 21, 2017
In three years (lightning speed in the law), medically assisted dying went from being illegal to being legal. A great deal has changed, a great…
Apr 20, 2017
On April 13, 2017, Canada’s federal government introduced legislation that, if passed into law, will legalize recreational cannabis in Canada.…
Apr 17, 2017
Recreational cannabis isn’t legal yet - but much of the associated stigma is already gone, usage is up and employers are feeling the workplace…
Apr 5, 2017
NOTE: Consultants who were already lobbying and in-house lobbyists already employed by an organization when the new Act took effect were…
Mar 15, 2017
On March 9, 2017, the N.S. Court of Appeal stopped building inspection claims in their tracks when it decided that a defence based section…
Jan 25, 2017
Doing business with the public sector creates an often overlooked – but very real – risk that the confidential information a business…
Dec 22, 2016
Effective January 1, 2017, the kinds of trusts that can claim the Principal Residence Exemption (PRE) will be limited. Now, the PRE allows…
Dec 19, 2016
On December 14, 2016, Bill 46 and the Newfoundland and Labrador Public Procurement Act became law. The new Act isn’t yet in effect, however,…
Nov 28, 2016
On November 25, 2016, the Supreme Court of Canada decided privilege wins again - twice. In two separate decisions - Lizotte v. Aviva Insurance…
Nov 22, 2016
There is an old expression about “selling the Brooklyn Bridge”. Recently, a bankrupt subcontractor attempted to register a lien against the…
Sep 23, 2016
On September 15, 2016, the New Brunswick Court of Appeal clarified the province’s statutory regime governing both the exercise of a lender’s…
Sep 19, 2016
On September 15, 2016, the Supreme Court of Canada decided certain damage to a building under construction was covered under the relevant…
Sep 12, 2016
On September 9, 2016, the Supreme Court of Canada decided in Musqueam Indian Band v. Musqueam Indian Band (Board of Review) that an Indian band…
Jul 7, 2016
On July 6, 2016, the Federal Department of Fisheries and Ocean’s (DFO) accepted the Ministerial Advisory Panel (MAP) recommendation in the…
Jul 5, 2016
The Ontario Court of Appeal has re-ignited the discussion about when a municipality will be held liable for its shoddy bylaw enforcement…
Jun 30, 2016
As of June 25, 2016, provincially regulated workers and employers in Nova Scotia, Quebec, BC and Saskatchewan can participate in Pooled…
Jun 30, 2016
The condo real estate market, both retail and commercial, is hot. But condo developers and unit buyers need funding. Here’s the legal…
Jun 20, 2016
As of July 1, 2016, packed cargo containers to which the International Convention for the Safety of Life at Sea (SOLAS), Chapter VI, Regulation…
Jun 20, 2016
Real estate vendors and purchasers have high expectations of their realtors – and they don’t often hesitate to pursue legal action against…
Jun 17, 2016
In its June 16, 2016 decision in Rogers Communications Inc. v. Châteauguay (City), the Supreme Court of Canada decided a municipality’s…
Jun 10, 2016
Administrative monetary penalties, or “AMPs”, are a new phenomenon in the Canadian offshore. AMPs were introduced to the Newfoundland &…
Jun 6, 2016
On June 3, 2016, the Supreme Court of Canada, in two related decisions, strengthened the legal protection of solicitor-client privilege in…
May 24, 2016
It’s now certain: in Newfoundland & Labrador, liens can’t be placed on Crown land or holdbacks with the possible exemption allowing for…
May 10, 2016
On May 6, 2016, the Supreme Court of Canada generally affirmed the common law rule that positive covenants do not run with the land. More…
May 2, 2016
We updated this publication on May 8, 2023. “Due diligence” is a legal defence to many charges under occupational health and safety (OHS)…
Apr 19, 2016
On April 14, 2016, the Supreme Court of Canada decided that Métis and “non-status Indians” are “Indians” under section 91(24) of the…
Apr 15, 2016
On April 14, 2016, Canada’s federal Justice Minister proposed legislation setting out the conditions that a person wishing to undergo…
Apr 12, 2016
Federal Budget 2016 proposed to significantly reduce the benefit of and access to the Small Business Deduction. The Small Business Deduction…
Mar 24, 2016
When a business responds to a public sector Request for Proposal or Expression of Interest (both of which we’ll refer to as an RFP for these…
Mar 9, 2016
On January 11, 2016, the Ontario Superior Court of Justice sentenced a front-line supervisor to imprisonment for 3½ years for four counts of…
Oct 19, 2015
Access to sufficient capital to fund operations, research and development, and other costs is a key challenge for start-ups and for some small…
Jul 29, 2015
On July 27, 2015, the Federal Court of Canada decided a lawsuit by medical marijuana program participants against the Federal Government…
Jul 17, 2015
On the heels of National Aboriginal Day, we pause to take a look back at two significant Aboriginal law cases decided in the last year, how…
Jul 10, 2015
On April 15, 2015, British Columbia’s Court of Appeal confirmed that First Nations can make certain legal claims grounded in Aboriginal rights…
Jun 25, 2015
We updated this publication on May 9, 2023. Most people know a company itself has occupational health and safety (OHS) obligations and risks…
May 25, 2015
This publication has been updated as at July 21, 2022. Every party to a Right of Way has some idea of what that Right of Way is – but many…
Apr 15, 2015
On April 15, 2015 the Supreme Court of Canada decided the City of Saguenay’s recitation of a religious - though non-denominational – prayer…
Apr 2, 2015
The market for the sale and the supply of goods is a global one for many businesses in today’s economy. Both exporting goods from Canada and…
Mar 3, 2015
Snow can be a big nuisance at this time of year, but snow load - the weight of the snow, usually measured in pounds per square foot - can be…
Feb 9, 2015
NOTE: On April 14, 2016, the federal government proposed legislation setting out the conditions that a person wishing to undergo…
Feb 2, 2015
On January 30, 2015 the Supreme Court of Canada decided that the Canadian Charter of Rights and Freedom’s protection for freedom of…
Dec 1, 2014
The construction industry - project owners, contractors, subcontractors and trades - might be relaxing, ignoring the hype around Canada’s…
Nov 27, 2014
Recently, the NS Court of Appeal confirmed that a union can be certified as the bargaining agent of employees based merely on their dependence…
Jun 11, 2014
Note: For an update on Crowdfunding, read: New Kid on the Block – Crowdfunding Joins Traditional Equity-Based Funding Options for Start-ups…
May 26, 2014
On May 23, 2014 the Federal Court of Canada decided the Federal Treasury Board Secretariat’s interpretation of the policy for compensating…
May 22, 2014
This publication has been updated as at February 17, 2021. Trusts offer a very useful estate planning solution for a wide variety of special…
Apr 15, 2014
The countdown to CASL is on: on July 1, 2014, the anti-spam sections of Canada’s Anti-Spam Legislation (“CASL”) take effect. Individuals…
Mar 15, 2013
Recent developments in Ontario and Yukon are an important reminder of the practical implications of the Crown’s legal Duty to Consult with…
Jan 8, 2013
On November 19, 2012, the Supreme Court of Canada (SCC) unanimously ruled a B.C. public school system’s failure to provide adequate and…
Subscribe to McInnes Cooper to stay current with our leading insights on legal updates, trends, news, events, and services.