General Conditions of a Service Contract
Table of Contents
- Appendix A (General Conditions)
- GC1 Interpretation
- GC2 Subcontracts
- GC3 Time of the Essence
- GC4 Excusable Delay
- GC5 Indemnification
- GC6 Notice
- GC7 Termination for Convenience or Suspension
- GC8 Termination due to Default of Contractor
- GC9 Replacement of Specific Individuals
- GC10 Accounts and Audits
- GC11 Copyright
- GC12 Ownership
- GC13 Conflict of Interest and Values and Ethics Codes for the Public Service
- GC14 Contractor Status
- GC15 Warranty by Contractor
- GC16 Harassment in the Workplace
- GC17 Amendments
- GC18 Entire Agreement
- GC19 Official Languages
- GC20 Unauthorized Codes
- GC21 Contingency Fees
- GC22 Office Space and Administrative Support
- GC23 Inspection and Acceptance of the Work
- GC24 No Bribe or Conflict
- GC25 Dispute Resolution
- GC26 Compliance with Applicable Laws
- GC27 Security and Protection of Work
- GC28 International Sanctions
- GC29 Incapacity to Contract with Government
- GC30 Intellectual Property Infringement and Royalties
- GC31 Translation of Documentation
- GC32 Confidentiality
- GC33 Government Property
- GC34 Code of Conduct for Procurement
- GC35 Conduct of the Work
- GC36 Powers of Canada
- GC37 Public Disclosure of Basic Information
- GC38 False Declaration
- GC39 Liability
- GC40 Assignment
- GC41 Integrity Provisions
- GC42 Contract Administration
- Appendix B (Supplementary Conditions)
- Appendix C (Terms of Payment)
Appendix A (General Conditions)
The general conditions are addressed to any potential suppliers interested in doing business with the Public Services Commission (PSC) and are incorporated in all contractual agreement issued by the PSC.
1.1 In the contract, unless the context otherwise requires
- 1.1.1 "Articles of Agreement" means the clauses and conditions incorporated in this document to form the body of the Contract; it does not include these general conditions, any supplemental general conditions, annexes, the Contractor's bid or any other document;
- 1.1.2 "Canada", "Crown", "Her Majesty" or "the Government" means Her Majesty the Queen in right of Canada as represented by the Minister of Canadian Heritage and Official Languages and any other person duly authorized to act on behalf of that minister;
- 1.1.3 "Contract" means the Articles of Agreement, these general conditions, any supplemental conditions, Terms of Payment of a Service Contract, annexes and any other document specified or referred to as forming part of the Contract, all as amended by agreement of the Parties from time to time;
- 1.1.4 "Contracting Authority" means the person designated by that title in the Contract, or by notice to the Contractor, to act as Canada's representative to manage the Contract;
- 1.1.5 "Contractor" means the person, entity or entities named in the Contract to supply goods, services or both to Canada;
- 1.1.6. "Contract Price" means the amount stated in the Contract to be payable to the Contractor for the Work, exclusive of Goods and Services Tax and Harmonized Sales Tax;
- 1.1.7 “Departmental Representative”, "Technical Authority" or “Project Authority” means the person designated in the Contract, or by notice to the Contractor, to act as the representative of the Minister of Canadian Heritage and Official Languages for the Work which is being carried out in matters concerning the technical aspects of the Work.
- 1.1.8 "Minister" means Minister of Canadian Heritage and Official Languages and any other person duly authorized to act on behalf of that Minister;
- 1.1.9 "Party" means Canada, the Contractor, or any other signatory to the Contract and "Parties" means all of them;
- 1.1.10 "Technical Documentation" means designs, reports, photographs, drawings, plans, specifications, computer software, surveys, calculations and other data, information and material collected, computed, drawn or produced, including computer print-outs;
- 1.1.11 "Work" means all the activities, services, goods, equipment, matters and things required to be done, delivered or performed by the Contractor under the Contract.
2.1 The Contractor may subcontract the supply of goods or services that are customarily subcontracted by the Contractor. In any other instance, the Contractor must obtain the prior consent in writing of the Contracting Authority. The Contracting Authority may require the Contractor to provide such particulars of the proposed subcontract as he considers necessary.
2.2 Subcontracting does not relieve the Contractor from any of its obligations under the Contract or impose any liability upon Canada to a subcontractor.
2.3 In any subcontract, the Contractor agrees to bind the subcontractor by the same conditions by which the Contractor is bound under the Contract, unless the Contracting Authority requires or agrees otherwise.
GC3 Time of the Essence
3.1 It is essential that the Work be performed within or at the time stated in the Contract.
GC4 Excusable Delay
4.1 A delay in the performance by the Contractor of any obligation under the Contract that is caused by an event that:
- 4.1.1 is beyond the reasonable control of the Contractor;
- 4.1.2 could not reasonably have been foreseen;
- 4.1.3 could not reasonably have been prevented by means reasonably available to the Contractor; and
- 4.1.4 occurred without the fault or neglect of the Contractor,
will be considered an "Excusable Delay" if the Contractor advises the Contracting Authority of the occurrence of the delay or of the likelihood of the delay as soon as the Contractor becomes aware of it. The Contractor must also advise the Contracting Authority, within fifteen (15) working days, of all the circumstances relating to the delay and provide to the Contracting Authority for approval a clear work around plan explaining in detail the steps that the Contractor proposes to take in order to minimize the impact of the event causing the delay.
4.2 Any delivery date or other date that is directly affected by an Excusable Delay will be postponed for a reasonable time that will not exceed the duration of the Excusable Delay.
4.3 However, if an Excusable Delay has continued for thirty (30) days or more, the Contracting Authority may, by giving notice in writing to the Contractor, terminate the Contract. In such a case, the Parties agree that neither will make any claim against the other for damages, costs, expected profits or any other loss arising out of the termination or the event that contributed to the Excusable Delay. The Contractor agrees to repay immediately to Canada the portion of any advance payment that is unliquidated at the date of the termination.
4.4 Unless Canada has caused the delay by failing to meet an obligation under the Contract, Canada will not be responsible for any costs incurred by the Contractor or any of its subcontractors or agents as a result of an Excusable Delay.
5.1 The Contractor shall indemnify and save harmless Canada, the Minister and their servants and agents from and against any damages, costs or expenses or any claim, action, suit or other proceeding which they or any of them may at any time incur or suffer as a result of or arising out of:
- 5.1.1 any injury to persons (including injuries resulting in death) or loss of or damage to property of others which may be or be alleged to be caused by or suffered as a result of the performance of the Work or any part thereof, except that Canada and the Minister shall not claim indemnity under this section to the extent that the injury, loss or damage has been caused by Canada; and
- 5.1.2 any liens, attachments, charges or other encumbrances or claims upon or in respect of any materials, parts, work-in-process or finished work furnished to, or in respect of which any payment has been made by Canada.
5.2 The Minister shall give notice to the Contractor of any claim, action, suit or proceeding referred to in subsection 5.1 and the Contractor shall, to the extent requested by the Attorney General of Canada, at its own expense participate in or conduct the defense of any such claim, action, suit or proceeding and any negotiations for settlement of the same, but the Contractor shall not be liable to indemnify Canada for payment of any settlement unless it has consented to the settlement.
6.1 Any notice under the Contract shall be in writing and may be delivered by hand or by courier, by registered mail, or by facsimile or other electronic means that provides a paper record of the text of the notice, addressed to the Party for whom it is intended at the address in the Contract or at the last address of which the sender has received notice in accordance with this section. Any notice shall be deemed to be effective on the day it is received at that address.
GC7 Termination for Convenience or Suspension
7.1 The Minister may, by giving notice to the Contractor, terminate for convenience or suspend the Work with respect to all or any part or parts of the Work not completed.
7.2 All Work completed by the Contractor to the satisfaction of the Minister before the giving of such notice shall be paid for by the Minister in accordance with the provisions of the Contract. For all Work not completed before the giving of such notice, the Minister shall pay the Contractor's costs as determined under the provisions of the Contract.
7.3 In addition to the amount which the Contractor shall be paid under subsection 7.2, the Contractor shall be reimbursed for the Contractor's cost of and incidental to the cancellation of obligations incurred by the Contractor pursuant to such notice and obligations incurred by or to which the Contractor is subject with respect to the Work.
7.4 Payment and reimbursement under the provisions of GC7 shall be made only to the extent that it is established to the satisfaction of the Minister that the costs and expenses were actually incurred by the Contractor and that the same are fair and reasonable and are properly attributable to the termination or suspension of the Work or the part thereof so terminated.
7.5 The Contractor shall not be entitled to be reimbursed any amount which, taken together with any amounts paid or becoming due to the Contractor under the Contract, exceeds the Contract price applicable to the Work or the particular part thereof.
7.6 The Contractor shall have no claim for damages, compensation, loss of profit, allowance or otherwise by reason of or directly or indirectly arising out of any action taken or notice given by the Minister under the provisions of GC7 except as expressly provided therein.
GC8 Termination due to Default of Contractor
8.1 If the Contractor is in default in carrying out any of its obligations under the Contract, the Contracting Authority may, by giving written notice to the Contractor, terminate for default the Contract or part of the Contract. The termination will take effect immediately or at the expiration of a cure period specified in the notice, if the Contractor has not cured the default to the satisfaction of the Contracting Authority within that cure period.
8.2 If the Contractor becomes bankrupt or insolvent, makes an assignment for the benefit of creditors, or takes the benefit of any statute relating to bankrupt or insolvent debtors, or if a receiver is appointed under a debt instrument or a receiving order is made against the Contractor, or an order is made or a resolution passed for the winding down of the Contractor, the Contracting Authority may, to the extent permitted by the laws of Canada, by giving written notice to the Contractor, immediately terminate for default the Contract or part of the Contract.
8.3 If Canada gives notice under subsection 8.1 or 8.2, the Contractor will have no claim for further payment except as provided in this section. The Contractor will be liable to Canada for all losses and damages suffered by Canada because of the default or occurrence upon which the notice was based, including any increase in the cost incurred by Canada in procuring the Work from another source. The Contractor agrees to repay immediately to Canada the portion of any advance payment that is unliquidated at the date of the termination.
8.4 Upon termination of the Work under subsection 8.1 or 8.2, the Minister may require the Contractor to deliver and transfer title to the Minister, in the manner and to the extent directed by the Minister, any finished Work which has not been delivered and accepted prior to such termination and any materials or work-in-process which the Contractor has specifically acquired or produced for the fulfillment of the Contract. The Minister shall pay the Contractor for all such finished Work delivered pursuant to such direction and accepted by the Minister the cost to the Contractor of such finished Work plus the proportionate part of any fee fixed by the said Contract and shall pay or reimburse the Contractor the fair and reasonable cost to the Contractor of all materials or work-in-process delivered to the Minister pursuant to such direction. The Minister may withhold from the amounts due to the Contractor such sums as the Minister determines to be necessary to protect the Minister against excess costs for the completion of the Work.
8.5 The Contractor shall not be entitled to be reimbursed any amount which, taken together with any amounts paid or becoming due to the Contractor under the Contract, exceeds the contract price applicable to the Work or the particular part thereof.
8.6 If, after the Minister issues a notice of termination under subsection 8.1 or 8.2, it is determined by the Minister that the default of the Contractor is due to causes beyond the control of the Contractor, such notice of termination shall be deemed to have been issued pursuant to subsection 7.1 or 7.2 and the rights and obligations of the Parties hereto shall be governed by GC7.
GC9 Replacement of Specific Individuals
9.1 If specific individuals are identified in the Contract to perform the Work, the Contractor must provide the services of those individuals unless the Contractor is unable to do so for reasons beyond its control.
9.2 If the Contractor is unable to provide the services of any specific individual identified in the Contract, it must provide a replacement with similar qualifications and experience. The replacement must meet the criteria used in the selection of the Contractor and be acceptable to Canada. The Contractor must, as soon as possible, give notice to the Contracting Authority of the reason for replacing the individual and provide:
- 9.2.1 the name, qualifications and experience of the proposed replacement; and
- 9.2.2 proof that the proposed replacement has the required security clearance granted by Canada, if applicable.
9.3 The Contractor must not, in any event, allow performance of the Work by unauthorized replacement persons. The Contracting Authority may order that a replacement stop performing the Work. In such a case, the Contractor must immediately comply with the order and secure a further replacement in accordance with subsection 2. The fact that the Contracting Authority does not order that a replacement stop performing the Work does not relieve the Contractor from its responsibility to meet the requirements of the Contract.
GC10 Accounts and Audits
10.1 The Contractor must keep proper accounts and records of the cost of performing the Work and of all expenditures or commitments made by the Contractor in connection with the Work, including all invoices, receipts and vouchers. The Contractor must retain records, including bills of lading and other evidence of transportation or delivery, for all deliveries made under the Contract.
10.2 If the Contract includes payment for time spent by the Contractor, its employees, representatives, agents or subcontractors performing the Work, the Contractor must keep a record of the actual time spent each day by each individual performing any part of the Work.
10.3 Unless Canada has consented in writing to its disposal, the Contractor must retain all the information described in this section for six (6) years after it receives the final payment under the Contract, or until the settlement of all outstanding claims and disputes, whichever is later. During this time, the Contractor must make this information available for audit, inspection and examination by the representatives of Canada, who may make copies and take extracts. The Contractor must provide all reasonably required facilities for any audit and inspection and must furnish all the information as the representatives of Canada may from time to time require to perform a complete audit of the Contract.
10.4 The amount claimed under the contract, calculated in accordance with the Basis of Payment provision in the Articles of Agreement, is subject to government audit both before and after payment is made. If an audit is performed after payment, the Contractor agrees to repay any overpayment immediately on demand by Canada. Canada may hold back, deduct and set off any credits owing and unpaid under this section from any money that Canada owes to the Contractor at any time (including under other contracts). If Canada does not choose to exercise this right at any given time, Canada does not lose this right.
11.1 Anything that is created or developed by the Contractor as part of the Work under the Contract in which copyright subsists belongs to Canada. The Contractor must incorporate the copyright symbol and either of the following notices, as appropriate: © Her Majesty the Queen in right of Canada (year) or © Sa Majesté la Reine du chef du Canada (année).
11.2 At the request of the Contracting Authority, the Contractor must provide to Canada, at the completion of the Work or at such other time as the Contracting Authority may require, a written permanent waiver of moral rights as defined in the Copyright Act, R.S., 1985, c. C-42, in a form acceptable to the Contracting Authority, from every author that contributed to the Work. If the Contractor is an author, the Contractor permanently waives the Contractor's moral rights.
12.1 Unless provided otherwise in the Contract, the Work or any part of the Work belongs to Canada after delivery and acceptance by or on behalf of Canada.
12.2 However if any payment is made to the Contractor for or on account of any Work, either by way of progress or milestone payments, that work paid for by Canada belongs to Canada upon such payment being made. This transfer of ownership does not constitute acceptance by Canada of the Work or any part of the Work and does not relieve the Contractor of its obligation to perform the Work in accordance with the Contract.
12.3 Despite any transfer of ownership, the Contractor is responsible for any loss or damage to the Work or any part of the Work until it is delivered to Canada in accordance with the Contract. Even after delivery, the Contractor remains responsible for any loss or damage to any part of the Work caused by the Contractor or any subcontractor.
12.4 Upon transfer of ownership to the Work or any part of the Work to Canada, the Contractor must, if requested by Canada, establish to Canada's satisfaction that the title is free and clear of all claims, liens, attachments, charges or encumbrances. The Contractor must execute any conveyances and other instruments necessary to perfect the title that Canada may require.
GC13 Conflict of Interest and Values and Ethics Codes for the Public Service
GC14 Contractor Status
14.1 The Contractor is an independent contractor engaged by Canada to perform the Work. Nothing in the Contract is intended to create a partnership, a joint venture or an agency between Canada and the other Party or Parties. The Contractor must not represent itself as an agent or representative of Canada to anyone. Neither the Contractor nor any of its personnel is engaged as an employee or agent of Canada. The Contractor is responsible for all deductions and remittances required by law in relation to its employees.
GC15 Warranty by Contractor
15.1 The Contractor warrants that the Contractor is competent to perform the Work required under the Contract in that the Contractor has the necessary qualifications including the knowledge, skill and ability to perform the Work.
15.2 The Contractor warrants that the Contractor shall provide a quality of service at least equal to that which Contractors generally would expect of a competent Contractor in a like situation.
GC16 Harassment in the Workplace
16.1 The Contractor acknowledges the responsibility of Canada to ensure, for its employees, a healthy work environment, free of harassment. A copy of the Policy on the Prevention and Resolution of Harassment in the Workplace, which is also applicable to the Contractor, is available on the Treasury Board Web site.
16.2 The Contractor must not, either as an individual, or as a corporate or unincorporated entity, through its employees or subcontractors, harass, abuse, threaten, discriminate against or intimidate any employee, contractor or other individual employed by, or under contract with Canada. The Contractor will be advised in writing of any complaint and will have the right to respond in writing. Upon receipt of the Contractor's response, the Contracting Authority will, at its entire discretion, determine if the complaint is founded and decide on any action to be taken.
17.1 No design change, modification to the Work, or amendment to the Contract shall be binding unless it is incorporated into the Contract by written amendment or design change memorandum executed by the Departmental Representative and of the Contractor.
17.2 While the Contractor may discuss any proposed changes or modifications to the scope of the Work with the Technical Authority, the Minister shall not be liable for the cost of any such change or modification until it has been incorporated into the Contract in accordance with section17.1
GC18 Entire Agreement
18.1 The Contract constitutes the entire and sole agreement between the Parties with respect to the subject matter of the Contract and supersedes all previous negotiations, communications and other agreements, whether written or oral, relating to it, unless they are incorporated by reference in the Contract. There are no terms, covenants, representations, statements or conditions binding on the Parties other than those contained in the Contract.
GC19 Official Languages
19.1 The Contractor agrees to comply with the requirements of the Official Languages Act and related policies and directives issued by Treasury Board Secretariat.
GC20 Unauthorized Codes
20.1 The Contractor warrants that any data or software provided to the Minister under this Contract will not contain any unauthorized code, whether or not through fault or negligence of the Contractor.
20.2 Without limiting the application of clause GC5, in the event that the Minister suffers any damages resulting from the presence of any unauthorized code, the Contractor shall be liable for all costs and expenses incurred by the Minister to restore the system to its original condition.
GC21 Contingency Fees
21.1 The contractor declares that the contractor has not, directly or indirectly, paid or agreed to pay, and will not, directly or indirectly, pay a contingency fee to any individual for the solicitation, negotiation or obtaining of the contract if the payment of the fee would require the individual to file a return under section 5 of the Lobbying Act.
GC22 Office Space and Administrative Support
22.1 The Contractor shall provide office space equipped with such furniture and equipment, together with such staff and other services as may be necessary for carrying out of the services required under this Contract.
GC23 Inspection and Acceptance of the Work
23.1 All the Work is subject to inspection and acceptance by Canada. Inspection and acceptance of the Work by Canada do not relieve the Contractor of its responsibility for defects or other failures to meet the requirements of the Contract. Canada will have the right to reject any work that is not in accordance with the requirements of the Contract and require its correction or replacement at the Contractor's expense.
GC24 No Bribe or Conflict
24.1 The Contractor declares that no bribe, gift, benefit, or other inducement has been or will be paid, given, promised or offered directly or indirectly to any official or employee of Canada or to a member of the family of such a person, with a view to influencing the entry into the Contract or the administration of the Contract.
24.2 The Contractor must not influence, seek to influence or otherwise take part in a decision of Canada knowing that the decision might further its private interest. The Contractor must have no financial interest in the business of a third party that causes or would appear to cause a conflict of interest in connection with the performance of its obligations under the Contract. If such a financial interest is acquired during the period of the Contract, the Contractor must immediately declare it to the Contracting Authority.
24.3 The Contractor warrants that, to the best of its knowledge after making diligent inquiry, no conflict exists or is likely to arise in the performance of the Contract. In the event the Contractor becomes aware of any matter that causes or is likely to cause a conflict in relation to the Contractor's performance under the Contract, the Contractor must immediately disclose such matter to the Contracting Authority in writing.
24.4 If the Contracting Authority is of the opinion that a conflict exists as a result of the Contractor's disclosure or as a result of any other information brought to the Contracting Authority's attention, the Contracting Authority may require the Contractor to take steps to resolve or otherwise deal with the conflict or, at its entire discretion, terminate the Contract for default. Conflict means any matter, circumstance, interest, or activity affecting the Contractor, its personnel or subcontractors, which may or may appear to impair the ability of the Contractor to perform the Work diligently and independently.
GC25 Dispute Resolution
The Parties agree to make every reasonable effort, in good faith, to settle amicably all disputes or claims relating to the Contract, through negotiations between the Parties’ representatives authorized to settle. If the Parties do not reach a settlement within 25 working days after the dispute was initially raised to the other party in writing, either Party may contact the Office of the Procurement Ombudsman (OPO) to request dispute resolution/mediation services. OPO may be contacted by e-mail at firstname.lastname@example.org, by telephone at 1-866-734-5169, or by web at www.opo-boa.gc.ca. For more information on OPO’s services, please see the Procurement Ombudsman Regulations or visit the OPO website.
GC26 Compliance with Applicable Laws
26.1 The Contractor must comply with all laws applicable to the performance of the Contract. The Contractor must provide evidence of compliance with such laws to Canada at such times as Canada may reasonably request.
26.2 The Contractor must obtain and maintain at its own cost all permits, licenses, regulatory approvals and certificates required to perform the Work. If requested by the Contracting Authority, the Contractor must provide a copy of any required permit, license, regulatory approvals or certificate to Canada.
GC27 Security and Protection of Work
27.1 Notwithstanding the Validity Date of the Contract, it is a precondition of the Contract that the Contractor and his personnel have a Security Clearance at the level designated for Work assignment for the full length of the Contract. The Contractor shall take all reasonable steps necessary to ensure that its performance of the Work, in accordance with the provisions of the Contract, adheres to all requirements of this Security Clearance level. The Ministry may, at any time, conduct an examination of the Contractor's premises, documents and records to verify whether the Contractor is complying with the security requirements of the Contract.
27.2 Subject to section 27.3, the Contractor and his personnel shall treat as confidential and shall not disclose, during as well as after the performance of the Work, any information to which the Contractor becomes privy as a result of the Contract and which has not been approved for release to the public.
27.3 The Contractor and his personnel shall not speak on nor disseminate in any manner to the public, any information in relation to the Contract, including, but not limited to reports, data, findings or conclusions arising from the Contract, without the prior written permission of the Departmental Representative.
27.4 The Contractor and his personnel shall forthwith remedy any breach of the Contract Security and Protection of Work provisions, in accordance with the Minister's instructions, failing which the Departmental Representative shall have the right to terminate the Contract in accordance with clause GC8.
27.5 The Contractor and his personnel should be familiar with the contents of the Security of Information Act and the Public Work Government Services Canada Industrial Security Manual.
GC28 International Sanctions
28.1 Persons in Canada, and Canadians outside of Canada, are bound by economic sanctions imposed by Canada. As a result, the Government of Canada cannot accept delivery of goods or services that originate, either directly or indirectly, from the countries or persons subject to economic sanctions.
28.2 The Contractor must not supply to the Government of Canada any goods or services which are subject to economic sanctions.
28.3 The Contractor must comply with changes to the regulations imposed during the period of the Contract. The Contractor must immediately advise Canada if it is unable to perform the Work as a result of the imposition of economic sanctions against a country or person or the addition of a good or service to the list of sanctioned goods or services. If the Parties cannot agree on a work around plan, the Contract will be terminated for the convenience of Canada in accordance with section GC8.
GC29 Incapacity to Contract with Government
29.1The contractor declares that the contractor has not been convicted of an offence, other than an offence for which a pardon has been granted, under the following sections of the Criminal Code:
- Section 121, Frauds on the government;
- Section 124, Selling or purchasing office; or
- Section 418, Selling defective stores to the Minister,
GC30 Intellectual Property Infringement and Royalties
30.1 The Contractor represents and warrants that, to the best of its knowledge, neither it nor Canada will infringe any third party's intellectual property rights in performing or using the Work, and that Canada will have no obligation to pay royalties of any kind to anyone in connection with the Work.
30.2 If anyone makes a claim against Canada or the Contractor concerning Intellectual Property infringement or royalties related to the Work, that Party agrees to notify the other Party in writing immediately. If anyone brings a claim against Canada, according to Department of Justice Act, R.S., 1985, c. J-2, the Attorney General of Canada must have the regulation and conduct of all litigation for or against Canada, but the Attorney General may request that the Contractor defend Canada against the claim. In either case, the Contractor agrees to participate fully in the defense and any settlement negotiations and to pay all costs, damages and legal costs incurred or payable as a result of the claim, including the amount of any settlement. Both Parties agree not to settle any claim unless the other Party first approves the settlement in writing.
30.3 The Contractor has no obligation regarding claims that were only made because:
- 30.3.1 Canada modified the Work or part of the Work without the Contractor's consent or used the Work or part of the Work without following a requirement of the Contract; or
- 30.3.2 Canada used the Work or part of the Work with a product that the Contractor did not supply under the Contract (unless that use is described in the Contract or the manufacturer's specifications); or
- 30.3.3 The Contractor used equipment, drawings, specifications or other information supplied to the Contractor by Canada (or by someone authorized by Canada); or
- 30.3.4 the Contractor used a specific item of equipment or software that it obtained because of specific instructions from the Contracting Authority; however, this exception only applies if the Contractor has included the following language in its own contract with the supplier of that equipment or software:"[Supplier name] acknowledges that the purchased items will be used by the Government of Canada. If a third party claims that equipment or software supplied under this contract infringes any intellectual property right, [supplier name], if requested to do so by either [Contractor name] or Canada, will defend both [Contractor name] and Canada against that claim at its own expense and will pay all costs, damages and legal fees payable as a result of that infringement." Obtaining this protection from the supplier is the Contractor's responsibility and, if the Contractor does not do so, it will be responsible to Canada for the claim.
30.4 If anyone claims that, as a result of the Work, the Contractor or Canada is infringing its intellectual property rights, the Contractor must immediately do one of the following:
- 30.4.1 take whatever steps are necessary to allow Canada to continue to use the allegedly infringing part of the Work; or
- 30.4.2 modify or replace the Work to avoid intellectual property infringement, while ensuring that the Work continues to meet all the requirements of the Contract; or
- 30.4.3 take back the Work and refund any part of the Contract Price that Canada has already paid.
30.5 If the Contractor determines that none of these alternatives can reasonably be achieved, or if the Contractor fails to take any of these steps within a reasonable amount of time, Canada may choose either to require the Contractor to do (section 30.4.3), or to take whatever steps are necessary to acquire the rights to use the allegedly infringing part(s) of the Work itself, in which case the Contractor must reimburse Canada for all the costs it incurs to do so.
GC31 Translation of Documentation
31.1 The Contractor agrees that Canada may translate in the other official language any documentation delivered to Canada by the Contractor that does not belong to Canada under section GC12. The Contractor acknowledges that Canada owns the translation and that it is under no obligation to provide any translation to the Contractor. Canada agrees that any translation must include any copyright notice and any proprietary right notice that was part of the original. Canada acknowledges that the Contractor is not responsible for any technical errors or other problems that may arise as a result of the translation.
32. 1 The Contractor must keep confidential all information provided to the Contractor by or on behalf of Canada in connection with the Work, including any information that is confidential or proprietary to third parties, and all information conceived, developed or produced by the Contractor as part of the Work when copyright or any other intellectual property rights in such information belongs to Canada under the Contract. The Contractor must not disclose any such information without the written permission of the appropriate authorized Government of Canada representative. The Contractor may disclose to a subcontractor any information necessary to perform the subcontract as long as the subcontractor agrees to keep the information confidential and that it will be used only to perform the subcontract.
32.2 The Contractor agrees to use any information provided to the Contractor by or on behalf of Canada only for the purpose of the Contract. The Contractor acknowledges that all this information remains the property of Canada or the third party, as the case may be. Unless provided otherwise in the Contract, the Contractor must deliver to the designated and authorized Government of Canada representative all such information, together with every copy, draft, working paper and note that contains such information, upon completion or termination of the Contract or at such earlier time as Canada may require.
32.3 Subject to the Access to Information Act, R.S., 1985, c. A-1, and to any right of Canada under the Contract to release or disclose, Canada must not release or disclose outside the Government of Canada any information delivered to Canada under the Contract that is proprietary to the Contractor or a subcontractor.
32.4 The obligations of the Parties set out in this section do not apply to any information if the information:
- 32.4.1 is publicly available from a source other than the other Party; or
- 32.4.2 is or becomes known to a Party from a source other than the other Party, except any source that is known to be under an obligation to the other Party not to disclose the information; or
- 32.4.3 is developed by a Party without use of the information of the other Party.
32.5 Wherever possible, the Contractor must mark or identify any proprietary information delivered to Canada under the Contract as " Property of (Contractor's name), permitted Government uses defined under Public Service Commission (PSC) Contract No. (fill in Contract Number)". Canada will not be liable for any unauthorized use or disclosure of information that could have been so marked or identified and was not.
32.6 If the Contract, the Work, or any information referred to in subsection 32.1 is identified as TOP SECRET, SECRET, CONFIDENTIAL, or PROTECTED by Canada, the Contractor must at all times take all measures reasonably necessary for the safeguarding of the material so identified, including those set out in the PWGSC Industrial Security Manual and its supplements and any other instructions issued by Canada.
32.7 If the Contract, the Work, or any information referred to in subsection 32. 1 is identified as TOP SECRET, SECRET, CONFIDENTIAL, or PROTECTED, by Canada; representatives of Canada are entitled to inspect the Contractor's premises and the premises of a subcontractor at any tier for security purposes at any time during the term of the Contract. The Contractor must comply with, and ensure that any subcontractor complies with, all written instructions issued by Canada dealing with the material so identified, including any requirement that employees of the Contractor or of any subcontractor execute and deliver declarations relating to reliability screenings, security clearances and other procedures.
GC33 Government Property
33.1 All Government Property must be used by the Contractor solely for the purpose of the Contract and remains the property of Canada. The Contractor must maintain adequate accounting records of all Government Property and, whenever feasible, mark it as being the property of Canada.
33.2 The Contractor must take reasonable and proper care of all Government Property while it is in its possession or subject to its control. The Contractor is responsible for any loss or damage resulting from its failure to do so other than loss or damage caused by ordinary wear and tear.
33.3 All Government Property, unless it is installed or incorporated in the Work, must be returned to Canada on demand. All scrap and all waste materials, articles or things that are Government Property must, unless provided otherwise in the Contract, remain the property of Canada and must be disposed of only as directed by Canada.
33.4 At the time of completion of the Contract, and if requested by the Contracting Authority, the Contractor must provide to Canada an inventory of all Government Property relating to the Contract.
GC34 Code of Conduct for Procurement
GC35 Conduct of the Work
35.1 The Contractor represents and warrants that:
- 35.1.1 it is competent to perform the Work;
- 35.1.2 it has everything necessary to perform the Work, including the resources, facilities, labour, technology, equipment, and materials; and
- 35.1.3 it has the necessary qualifications, including knowledge, skill, know-how and experience, and the ability to use them effectively to perform the Work.
35.2 The Contractor must:
- 35.2.1 perform the Work diligently and efficiently;
- 35.2.2 except for Government Property, supply everything necessary to perform the Work;
- 35.2.3 use, as a minimum, quality assurance procedures, inspections and controls generally used and recognized by the industry to ensure the degree of quality required by the Contract;
- 35.2.4 select and employ a sufficient number of qualified people;
- 35.2.5 perform the Work in accordance with standards of quality acceptable to Canada and in full conformity with the specifications and all the requirements of the Contract;
- 35.2.6 provide effective and efficient supervision to ensure that the quality of workmanship meets the requirements of the Contract.
35.3 The Work must not be performed by any person who, in the opinion of Canada, is incompetent, unsuitable or has been conducting himself/herself improperly.
GC36 Powers of Canada
36.1 All rights, remedies, powers and discretions granted or acquired by Canada under the Contract or by law are cumulative, not exclusive.
GC37 Public Disclosure of Basic Information
GC38 False Declaration
38.1 Should the contractor make a false declaration or fails to comply with the terms set out in this contract, it is an act of default under the contract and the contractor agrees, in addition to any other remedies that may be available against the contractor, to immediately return any advance payments and agrees that the contracting authority may terminate the contract.
39.1 The Contractor is liable for any damage caused by the Contractor, its employees, subcontractors, or agents to Canada or any third party. Canada is liable for any damage caused by Canada, its employees or agents to the Contractor or any third party. The Parties agree that no limitation of liability or indemnity provision applies to the Contract unless it is specifically incorporated in full text in the Articles of Agreement. Damage includes any injury to persons (including injury resulting in death) or loss of or damage to property (including real property) caused as a result of or during the performance of the Contract.
40.1 The Contractor must not assign the Contract without first obtaining the written consent of the Contracting Authority. Any assignment made without that consent is void and will have no effect. The assignment will be effective upon execution of an assignment agreement signed by the Parties and the assignee.
40.2 Assignment of the Contract does not relieve the Contractor from any obligation under the Contract and it does not impose any liability upon Canada.
GC41 Integrity Provisions
The Ineligibility and Suspension Policy (the “Policy”) and all related Directives incorporated by reference into the bid solicitation on its closing date are incorporated into, and form a binding part of the Contract. The Contractor must comply with the provisions of the Policy and Directives, which can be found on Public Works and Government Services Canada’s website at Ineligibility and Suspension Policy
GC42 Contract Administration
The Office of the Procurement Ombudsman (OPO) was established by the Government of Canada to provide an impartial, independent venue for Canadian bidders to raise complaints regarding the administration of certain federal contracts, regardless of dollar value. If you have concerns regarding the administration of a federal contract, you may contact OPO by e-mail at email@example.com, by telephone at 1-866-734-5169, or by web at www.opo-boa.gc.ca. For more information on OPO’s services, please see the Procurement Ombudsman Regulations or visit the OPO website.
Appendix B (Supplementary Conditions)
SC1 Former Public Servants
1.1 It is a term of the Contract:
- 1.1.1 that the Contractor has declared to the Contracting Authority whether the Contractor has received a lump sum payment made pursuant to any work force reduction program, including but not limited to the Work Force Adjustment Directive or the Executive Employment Transition Program;
- 1.1.2 that the Contractor has informed the Departmental Representative of the terms and conditions of that work force reduction program, pursuant to which the Contractor was made a lump sum payment, including the termination date, the amount of the lump sum payment and the rate of pay on which the lump sum payment was based;
- 1.1.3 that the Contractor has declared to the Departmental Representative whether the Contractor his in receipt of a pension paid pursuant to the Public Service Superannuation Act (PSSA) as indexed by the Supplementary Retirement Benefits Act.
- 1.1.4 that by providing information on its status, with respect to being a former public servant in receipt of a PSSA pension, the Contractor has agreed that this information will be reported on departmental websites as part of the published proactive disclosure reports, in accordance with Contracting Policy Notice: 2012-2 of the Treasury Board Secretariat of Canada.
SC2 T1204 Supplementary Slip
SC3 Definition of a day
3.1 A day is defined as 7.5 hours exclusive of meal breaks. Payment shall be for days actually worked with no provision for annual leave, statutory holidays and sick leave. Time worked which is more or less than a day shall be prorated to reflect actual time worked in accordance with the following formula:
Hours worked × (firm per diem rate ÷ 7.5 hours)
SC4 Closure of Government Offices
4.1 Contractor personnel are employees of the Contractor and are paid by the Contractor on the basis of services rendered. Where Contractor's employees are providing services on government premises under this Contract and the said premises become non accessible due to evacuation or closure of government offices, and consequently no Work is being performed as a result of the closure, Canada will not be liable for payment to the Contractor for the period of closure.
Appendix C (Terms Of Payment)
TP1 Payment Period
1.1 Canada's standard payment period is thirty (30) days. The payment period is measured from the date an invoice in acceptable form and content is received in accordance with the Contract or the date the Work is delivered in acceptable condition as required in the Contract, whichever is later. A payment is considered overdue on the 31st day following that date and interest will be paid automatically in accordance with the section TP2.
1.2 If the content of the invoice and its substantiating documentation are not in accordance with the Contract or the Work is not in acceptable condition, Canada will notify the Contractor within fifteen (15) days of receipt. The 30-day payment period begins upon receipt of the revised invoice or the replacement or corrected Work. Failure by Canada to notify the Contractor within fifteen (15) days will only result in the date specified in subsection 1.1 to apply for the sole purpose of calculating interest on overdue accounts.
TP2 Interest on Overdue Accounts
2.1 For the purpose of this section:
- 2.1.1 "Average Rate" means the simple arithmetic mean of the Bank Rates in effect at 4:00 p.m. Eastern Time each day during the calendar month immediately before the calendar month in which payment is made;
- 2.1.2 "Bank Rate" means the rate of interest established from time to time by the Bank of Canada as the minimum rate at which the Bank of Canada makes short term advances to members of the Canadian Payments Association;
- 2.1.3 "date of payment" means the date of the negotiable instrument drawn by the Receiver General for Canada to pay any amount under the Contract;
- 2.1.4 an amount becomes "overdue" when it is unpaid on the first day following the day on which it is due and payable according to the Contract.
2.2 Canada will pay to the Contractor simple interest at the Average Rate plus 3 percent per year on any amount that is overdue, from the date that amount becomes overdue until the day before the date of payment, inclusive. The Contractor is not required to provide notice to Canada for interest to be payable.
2.3 Canada will pay interest in accordance with this section only if Canada is responsible for the delay in paying the Contractor. Canada will not pay interest on overdue advance payments.
TP3 Invoice Submission
3.1 Invoices must be submitted in the Contractor's name. The Contractor must submit invoices for each delivery; invoices must only apply to the Contract. Each invoice must indicate whether it covers partial or final delivery.
3.2 Invoices must show:
- 3.2.1 the date, the name and address of the client department, deliverable and/or description of the Work, contract number;
- 3.2.2 details of expenditures in accordance with the Basis of Payment, exclusive of Goods and Services Tax (GST) or Harmonized Sales Tax (HST) (such as per diem rate, fixed price and level of effort, subcontracts, as applicable);
- 3.2.3 deduction for holdback, if applicable;
- 3.2.4 the extension of the totals, if applicable; and
- 3.2.5 if applicable, the method of shipment together with date, case numbers and part or reference numbers, shipment charges and any other additional charges.
3.3 If applicable, the GST or HST must be specified on all invoices as a separate item. All items that are zero-rated, exempt or to which the GST or HST does not apply, must be identified as such on all invoices.
3.4 By submitting an invoice, the Contractor certifies that the invoice is consistent with the Work delivered and is in accordance with the Contract.
4.1 Municipal Taxes
Municipal Taxes do not apply.
4.2 Provincial Taxes
- 4.2.1 Excluding legislated exceptions, federal government departments and agencies are not required to pay any sales tax payable to the province in which the taxable goods or services are delivered. This exemption has been provided to federal government departments and agencies under the authority of one of the following:
- Provincial Sales Tax (PST) Exemption Licence Numbers, for the provinces of:
- Prince Edward Island OP-10000-250
- Manitoba 390-516-0
- for Quebec, Saskatchewan, the Yukon Territory, the Northwest Territories and Nunavut, an Exemption Certification, which certifies that the goods or services purchased are not subject to the provincial/territorial sales and consumption taxes because they are purchased by the federal government with Canada funds for the use of the federal government.
- Provincial Sales Tax (PST) Exemption Licence Numbers, for the provinces of:
- 4.2.2 Currently, in Alberta, the Yukon Territory, the Northwest Territories and Nunavut there is no general PST. However, if a PST is introduced in Alberta, the Yukon Territory, the Northwest Territories or Nunavut, the sales tax exemption certificate would be required on the purchasing document.
- 4.2.3 Federal departments must pay the HST in the participating provinces of Newfoundland and Labrador, Nova Scotia, New Brunswick, Ontario and British Columbia.
- 4.2.4 The Contractor is not exempt from paying PST under the above Exemption numbers or Exemption Certification. The Contractor must pay the PST on taxable goods or services used or consumed in the performance of the Contract (in accordance with applicable provincial legislation), including material incorporated into real property.
4.3 Changes to Taxes and Duties
- 4.3.1 If there is any change to any tax or duty payable to any level of government in Canada after the contract award that affects the costs of the Work to the Contractor, the Contract Price will be adjusted to reflect the increase or decrease in the cost to the Contractor. However, there will be no adjustment for any change that increases the cost of the Work to the Contractor if public notice of the change was given before the date of the contract award in sufficient detail to have permitted the Contractor to calculate the effect of the change on its cost. There will be no adjustment if the change takes effect after the date required by the Contract for delivery of the Work.
4.4 Goods and Services Tax / Harmonized Sales Tax (GST/HST)
- 4.4.1 The estimated Goods and Services Tax (GST) or Harmonized Sales Tax (HST) is included in the contract amount unless otherwise indicated. GST or HST, to the extent applicable, must be incorporated into all invoices and progress claims and shown as a separate item on invoices and progress claims. All items that are zero-rated, exempt or to which the GST or HST does not apply, are to be identified as such on all invoices.
- 4.4.2 The collection of federal and provincial sales taxes is entirely the responsibility of the contractor. The Contractor must identify on his invoice which tax he claims and agrees to remit to Canada Revenue Agency any amounts of GST and HST paid or due.
- 4.4.3 As indicated in section 5 “Services” of the following technical document of the Canada Revenue Agency, the place of supply rules for supplies of services are based on the business address of the recipient (PSC Head Office). In this case, since the business address of the recipient in Ontario, we recommend that you claim the Ontario HST.
- 4.4.4 Given the complexity of the new rules, we recommend that requests for interpretation of individual circumstances be addressed at CRA. The telephone numbers are as follows:
- Technical Inquiries on HST:
- Service in English: 1-800-959-8287
- Service in French: 1-800-959-8296
- If you are located in Quebec 1-800-567-4692
- Technical Inquiries on HST:
4.5 Tax Withholding of 15 Percent
- 4.5.1 Pursuant to the Income Tax Act, 1985, c. 1 (5th Supp.) and the Income Tax Regulations, Canada must withhold 15 percent of the amount to be paid to the Contractor in respect of services provided in Canada if the Contractor is a non-resident unless the Contractor obtains a valid waiver. The amount withheld will be held on account for the Contractor in respect to any tax liability which may be owed to Canada.
5.1 Any payment by the Minister under this Contract is subject to there being an appropriation for the fiscal year in which the payment is to be made.
TP6 End of Fiscal Year Invoice
6.1 Notwithstanding the Payment Schedule, each year on or about March 31, the Contractor will, at the request of the Departmental Representative, submit an end-of-the-year invoice corresponding to the value of the total Work performed during the year preceding that date less any amounts previously paid or invoiced during such year.
6.2 All subsequent payment(s) payable pursuant to the Payment Schedule contained in the Contract will be reduced by any amount which could have been paid pursuant to under subsection 6.1.
TP7 Accounts and Records
7.1 All accounts and records relating to any payment by the contractor of fees or other compensation for the solicitation, negotiation or obtaining of the contract shall be subject to any accounting and auditing provisions of the contract.
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