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Procurement: COVID-19 (March 18, 2020)Message to PSPC Contracting AuthoritiesIn light of the current COVID-19 pandemic, and its impact on government operations and those of vendors, PSPC Contracting Authorities are being provided with the following instructions, as well as responses to concerns you and suppliers may have with respect to the current situation. This information will be updated on an ongoing basis as the situation continues to evolve. Contracting Authorities are instructed to reach out to clients to assess the urgency and need for contracted work to be performed, and determine if it is an essential core activity or not. The ultimate decision rests with the Client Technical Authority. If the work is deemed essential, Contractors must immediately be advised of any changes, as the case may be, in the delivery of the work that the circumstances may impose. If the work is deemed non-essential, and if Client Technical Authorities makes such a request, Contractors must be informed of any changes and a suspension of work must be issued as soon as possible according to the terms of the contract.?Furthermore, if the Client Technical Authority determines that it is feasible for all or part of the Work to be performed remotely, Contractors must be informed of this possibility. In addition, Contracting Authorities are instructed to reach out to their clients and contractors to assess whether contractors are experiencing, or may experience, any challenges, such as workforce availability or supply chain disruption that would jeopardize the delivery of this work.?Extending Active SolicitationsContracting Authorities are requested to consult with client departments to confirm the feasibility of extending?active bid solicitations that are currently set to close between?March 18 to March 31.?Such extensions should be for a minimum of two weeks from the current closing date. For example, a RFP closing?on March 19 at 2pm EDT?should be extended to close on or?after April 2 at 2pm EDT.?Contracting Authorities are to encourage the use of electronic bid submissions where possible.We are aware that?it may not be appropriate to extend certain bid solicitations due to operational/requirement considerations. In such cases, Contracting Authorities should consult and work with clients to determine feasibility of any extensions.Extending Bid Validity?Contracting Authorities are requested to extend bid validity periods that are currently set to expire?before March 31.?Such extensions should be for a minimum of one (1) month from the current bid validity date.?It may not be appropriate to extend certain bid validity periods due to operational/requirement considerations. In such cases, Contracting Authorities should consult and work with clients to determine feasibility of any extensions.COVID-19 impact on services contracts Given the impact of extraordinary measures associated with containing COVID-19, below is additional guidance to contracting authorities related to STAMS services contracts.While departments will make decisions about what is, and what is not, operational priorities during these times, the measures below are intended to help provide contracting options to mitigate the impact of the COVID-19 measures.Consultants working remotelySome service contracts require contractor personnel to be onsite at a federal property in order to perform the work. If the work can be done remotely (i.e. off site of the federal government, by teleconference, email, etc.), as determined by technical authorities, client departments may authorize consultants to do so. As many contracts have provisions related to security, it is also advisable that technical authorities consult with their Departmental Security Officer (DSO) to obtain advice on measures dealing with security for the work that may be completed remotely, where applicable.Contract Work suspension / Work delayIn other cases, work will need to be suspended (a stop work order) in whole or in part, and reactivated at a later date. The Terms and Conditions of the respective contracts will dictate the specific implications regarding the curtailing or suspension of work. Where work is suspended and later re-activated, the Contractor could be entitled to be paid its additional costs incurred as a result of the suspension plus a fair and reasonable profit, under the provisions of the respective contracts. Contract Task Authorization extensions Where appropriate, contract authorities should work with client departments to extend existing Task Authorizations that may expire in the near future term (e.g. March 31st). Given the unforeseen nature of the situation, Canada will also consider extending timelines for contract deliverables that are reasonably delayed due to the situation. Questions and AnswersA: Solicitations related to the COVID-19 pandemicA1. Has a National Security Exception (APPLICABLE ONLY TO PSPC AS THE CONTRACTING AUTHORITY) been invoked?Yes, a National Security Exception has been invoked (for procurement conducted by PSPC). Therefore, the trade agreements do not apply to procurements for the acquisition of goods and services required in order to respond to the COVID-19 pandemic. These procurements can be sourced through limited tendering, if justified.A2.Are there limitations to the contracts awarded under the NSE provision?As the National Security Exception has been invoked, the trade agreements do not apply for acquisition of goods and services required in order to respond to the COVID-19 pandemic.However, the Government Contract Regulations must still be respected. Should a decision be made for example, to proceed with a sole source contract, the exemption afforded by section 6(c) of the Government Contract Regulations could be used to justify the decision by explaining how the nature of the work is such that it would not be in the public interest to solicit bids.A3.What is covered under the NSE?If the contract is for the provision of goods and services that the GoC needs to respond to the COVID-19 pandemic, then it is covered by the NSE invocation. The invocation is for a defined period of time which is until the World Health Organization no longer declares the COVID-19 pandemic a Public Health Emergency of International Concern.If, however, the goods or services will not be obtained in time to meet the GoC’s needs for the COVID-19 pandemic, but will serve the purpose of general readiness for pandemics and epidemics in the future, then the existing NSE invocation for COVID-19 cannot be applied to the specific procurement. It is recommended the Contracting Authority consult with subject matter experts in PSSS to determine the best course of action to procure the required goods or services in relation to a National Security Exception.A4.What language do I need to insert in procurement documents to advise the procurement is covered under an existing NSE for COVID-19?The Contracting Authority should insert the following sentence in all contracts covered by the NSE:“This contract is being put in place by Canada as part of its response to the COVID-19 pandemic.”And, in the cases where a bid solicitation is issued, the Contracting Authority should insert the following sentence in all bid solicitations we consider covered by the NSE:“PWGSC has invoked the National Security Exception under all of Canada’s trade agreements and, as a result, the usual disciplines of the trade agreements do not apply to this procurement.”In addition, the applicable trade agreements from which the procurement is being excluded and the rationale for the NSE invocation must be included in the procurement approval documents.B: Other solicitations – Pre-Contract AwardB1.What happens to bid solicitations closing in the next two weeks?Directive on Extending Active Solicitations In light of the current COVID-19 pandemic, and its impact on government operations and those of vendors, Contracting Authorities are requested to consult with client departments to confirm the feasibility of extending active bid solicitations that are currently set to close between March 18 to March 31. Such extensions should be for a minimum of two weeks from the current closing date. For example, a RFP closing on March 19 at 2pm EDT should be extended to close on or after April 2 at 2pm EDT. We are aware that it may not be appropriate to extend certain bid solicitations due to operational/requirement considerations. In such cases, Contracting Authorities should consult and work with clients to determine feasibility of any extensions.B2.What happens to procurements where the bid validity period is expiring in the next two weeks?Directive on Extending Bid Validity In light of the current COVID-19 pandemic, and its impact on government operations and those of vendors, Contracting Authorities are requested to extend bid validity periods that are currently set to expire before March 31. Such extensions should be for a minimum of one (1) month from the current bid validity date. It may not be appropriate to extend certain bid validity periods due to operational/requirement considerations. In such cases, Contracting Authorities should consult and work with clients to determine feasibility of any extensions.B3. Are there any changes with respect to submitting hand-delivered bids?Reduced operational hours are in place for submitting hand-delivered bids, therefore please refer to the following link for additional details. Suppliers are strongly encouraged to submit their bids electronically using the fax, or by epost Connect online service provided by Canada Post Corporation (indicated in the Bidder Instructions of the solicitation document). This service allows suppliers to submit bids, offers and arrangements electronically to PSPC Bid Receiving Units. This online service enables the electronic transfer of large files up to Protected B level. To use epost Connect, or to get more information on how to use it, please send an email to the national Bid Receiving Unit’s generic address at tpsgc.dgareceptiondessoumissions-abbidreceiving.pwgsc@tpsgc-pwgsc.gc.ca.The Bid Receiving Unit for the National Capital Region remains open, but with limited hours: Monday to Friday, 10 am to 2 pm (Eastern time). The health and safety of staff and suppliers remains our top priority. As such, measures are being taken on site to encourage social distancing. For information regarding regional Bid Receiving Units, please consult your PSPC Regional Office.C: Other solicitations – Post-Contract AwardC1. Should contract authorities extend current contracts if there will be delays related to COVID-19?Contracts may contain options to extend the contract period by a specified period of time. If client departments advise they wish to exercise a contract option to extend the period of the contract, Contracting Authorities must obtain a written confirmation in the form of an email including a Financial Administration Act Section 32 confirmation that there is sufficient unencumbered balance available out of the appropriation and the client department has provided written instructions to proceed with extending the contract. C2.How do I exercise options to extend a contract?Contracts may contain options to extend the contract period by a specified period of time. If client departments advise they wish to exercise a contract option to extend the period of the contract, Contracting Authorities must obtain a written confirmation in the form of an email including a Financial Administration Act Section 32 confirmation that there is sufficient unencumbered balance available out of the appropriation and the client department has provided written instructions to proceed with extending the contract. An original Section 32 (scanned) signature(s) or secure electronic signature(s) is required and the document must be dated.Although the Contracting Authority would then normally generate a contract amendment through ABE, that option may not be currently possible and Canada can generate the administrative amendment later. In the meantime, however, to ensure Canada is properly exercising its’ agreed upon right and to legally amend the contract, the Contracting Authority must send a written confirmation to the Contractor that they are exercising the option to extend the term of the Contract. That can be in the form of an email to the Contractor’s Representative as outlined in the Contract. The Contracting Authority must send the written notice before the expiry date of the Contract. The recommended language for the notice is:Canada is exercising its contractual right to extend the term of the Contract by X under the same conditions as outlined in the Contract. Effective today, the period of the Contract now ends on Y [insert the new period of the contract “The period of the Contract is from X until Y.”].Due to the current COVID-19 crisis, Canada will generate the administrative contract amendment and send it to you at a later date. All other terms and conditions of the Contract remain the same and as previously agreed, Canada will pay the Contractor in accordance with the Contract provisions as set out in the Basis of Payment. The Contracting Authority must ensure the written notice is actioned in ABE when internal processing of amendments permits. This may mean creating a chronological list of contracts requiring a formal contract amendment and ensuring, once government services permit, Canada generates and sends the amendment to the Contractor. In the event the extended period of the option runs out before government services return to normal and Canada can generate an ABE amendment, if further options to extend the period of the contract remain, the Contracting Authority must exercise them before the end of the Contract. That means that the Contracting Authority must monitor amended contracts to ensure they extend them again before the Contract expires. The Contracting Authority must use the same process outlined above for subsequent amendments to extend the Contract. C3. Is a formal amendment required to extend contracts in these times of increased operational pressures?Although Contracting Authorities would normally generate a contract amendment through ABE, that option may not be currently possible and Canada can generate the administrative amendment later. To ensure Canada is properly exercising its’ agreed upon right and to legally amend the Contract, the Contracting Authority must send a written confirmation to the Contractor that they are exercising the option to extend the term of the Contract. That can be in the form of an email to the Contractor’s Representative as outlined in the Contract. The Contracting Authority must send the written notice before the expiry date of the Contract. The recommended language for the notice is:Canada is exercising its contractual right to extend the term of the Contract by X under the same conditions as outlined in the Contract. Effective today, the period of the Contract now ends on Y [insert the new period of the contract “The period of the Contract is from X until Y.”].Due to the current COVID-19 crisis, Canada will generate the administrative contract amendment and send it to you at a later date. All other terms and conditions of the Contract remain the same and as previously agreed, Canada will pay the Contractor in accordance with the Contract provisions as set out in the Basis of Payment. C4.What recourse does Canada have where a supplier is delayed in meeting its obligations due to COVID-19, what contract provisions apply to regulate the parties?Most of Canada’s contracts contain standard “Excusable Delay” provisions. They are for exceptional and unforeseeable events that prevent the Contractor from being able to deliver on time. Such a provision provides a mechanism for the contracting parties to address situations such as the COVID-19. Because there have sometimes been modifications negotiated to these provisions, Contracting Authorities should always verify the terms and conditions of the contract and consult with Legal Services, as appropriate.C5.What qualifies as an excusable delay?For a Contractor to be able to rely on an excusable delay provision to justify or excuse the late delivery of goods or services, there is a four point test: The delay must be beyond the reasonable control of the Contractor;The delay could not reasonably have been foreseen;The delay could not reasonably have been prevented by means reasonably available to the Contractor; andThe delay occurred without the Contractor’s fault or neglect.Canada must evaluate each request to invoke the excusable delay provision made by a contractor individually and make a decision based on all the facts surrounding the contract. Given the nature of COVID-19 and the exceptional closure of some manufacturing facilities and travel restrictions, it is likely that a contractor would meet the test for an excusable delay. A contractor will have to demonstrate that COVID-19 had a direct impact on performance and was unforeseeable. If, for example, a resource could not show up, Canada should ask for a copy of the airplane ticket and of the cancellation notice. If a subcontractor is not manufacturing because factories have been closed, Canada should ask for evidence and require the contractor to substantiate proof. C6.What must a supplier do to rely on excusable delay?Most of Canada’s contracts contain standard “Excusable Delay” provisions. To rely on the excusable delay provision in a contract, a contractor must notify Canada of the delay or the likelihood of the delay as soon as it becomes aware of it (in writing to the Contracting Authority). Then, within 15 working days, the Contractor must advise Canada of all the circumstances relating to the delay and provide Canada a clear work around plan with detailed steps the Contractor proposes to take to minimize the impact of the event causing the delay. The work around plan is subject to Canada’s approval. C7.What if a client wants to put a stop to work underway?Where client department decides the work (under the Contract, Call-up or a Task Authorization) is temporarily no longer required, in whole or in part, the work should be stopped through a communication to the vendor. Provisions in the general conditions of the respective contracts allow for Canada to pause the work temporarily (Refer to Suspension of the Work). Where work is suspended, there may be a cost to Canada and reference to these provisions of the respective contracts is recommended.C8.What if a client wants to terminate a contract?Should it be in the best interest of the Crown or of equal benefit to both parties, terminations could be considered to avoid future and prolonged periods of delay or amendments to sustain contract viability. Termination for convenience and by mutual consent may be considered based on clients’ operational needs.D: Financial QuestionsD1.Due to the pandemic, if the delivery date has slipped past March 31st, can I use 2019-20 money to pay? If there is not money in 2020-21 for the requirement, how are the deliverables paid for?S. 37.1 of the Financial Administration Act requires that work performed for, goods received by or services rendered to Canada before the fiscal year-end must be recorded as a charge against the appropriation to which the payment relates. If Canada extends a contract due to excusable delay outside of March 31, 2020, the Contract is now payable under another fiscal year appropriation. D2.What are the options available to Canada at year-end resulting from an excusable delay in the performance of goods and services contracts?S. 37.1 of the Financial Administration Act which requires that work performed for, goods received by or services rendered to Canada before the fiscal year-end must be recorded as a charge against the appropriation to which the payment relates. Therefore, the option of extending the Contract obligations for a period equal to the amount of time of the excusable delay may not be helpful. If Canada extends a contract due to excusable delay outside of March 31, 2020, the Contract is now payable under another fiscal year appropriation. Departments should contact their TBS portfolio analyst to request the money be re-profiled to the next fiscal year.Amending year end contracts to insert advance payment provisions to make payment under the current fiscal year appropriation would not meet the Treasury Board guidelines as advance payments are only to be considered in extraordinary circumstances. In addition, in contracts for services valued over $25,000, the policy requires some form of guarantee by a financially strong third party to protect any advance payment. In contracts for services valued at less than $25,000 security may be dispense with if the Contracting Authority certifies that the Contractor has been actively engaged in the industry, has a good reputation, and there is no record of significant financial or performance problems in past dealings with the Contractor. Additionally, if a contract was originally subject to Treasury Board approval, Canada would have to return to Treasury Board for approval before amending the Contract. Canada cannot accept delivery if there are no goods or services actually received, and cannot certify that the work has been performed, the goods supplied or the services rendered, and that the payment is according to the Contract pursuant to s. 34(1)(a) of the Financial Administration Act. 628650309562500 ................
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