Construction File: BC Government Introduces Capital Procurement Audit Tool for Capital Asset Management Framework

Recently, the BC Government issued its Capital Procurement Audit Tool developed to assist government ministries and agencies in adhering to the existing policies and standards that are set out under the Capital Asset Management Framework, published in 2002. In the Framework, Part 8 Capital Procurement, it set out the government’s policies and standards and advised that additional tools where being developed. The document can be found at http://www.fin.gov.bc.ca/tbs/camf_guidelines.pdf

This Audit Tool will serve several purposes: it provides detailed guidance to agencies undertaking capital procurement, and, it will assist government in assessing the adoption of capital procurement best practices across ministries and agencies, and in adhering to provincial capital procurement principles, policies and guidelines and inter-governmental trade requirements.

All public sector agencies are expected to immediately begin using the audit tool as a means of assessing adherence to provincial procurement policies. Audits may be carried out by Ministries responsible for public sector agencies, the Ministry of Finance or independent bodies.

The Audit Tool is based on the principle that taxpayers are best served through competitive procurement processes which are well-structured, objective and inclusive. Bidders will be more likely to participate, and there will be more competition, where the selection process is clear and well understood.

Among the issues that BCCA perceives as a consideration of the Audit Tool are onerous bidding clauses and privilege clauses that eliminate the fair, open and transparent objectives that our members have come to expect in the public procurement process. In the January issue of the Construction File (http://bccassn.xpr.cloud/documents/ConstrFile0107.pdf) we advised of our intention to issue Contractor Alerts that would inform contractors of the risks associated with onerous clauses in bidding documents. These Alerts will be issued by BCCA based on direct input from industry bidders who will identify a project and the onerous clauses that they wish to have recognized.

When BCCA has been requested to issue an Alert we will be considering the onerous clause(s) within the context of the Audit Tool. For example:

  • Are there onerous/privilege clauses that may not ‘Implement fair, open procurement and award that gains the confidence of the bidders’?
  • Is there a pre-qualification process that is ‘used unnecessarily, restricting competition and potentially reducing competition and compromising potential value for money’?
  • Or does the prequalification ‘unfairly favour specific contractors’?

It is BCCA’s understanding that agencies are subject to the Audit Tool whether projects may have significant funding by the Provincial Government, such as for education and health facilities, or are partially funded, as in the case of local infrastructure projects. Treasury Board will require all agencies to report on Audit Tool results as part of the annual government budgeting processes. Audit results will be used to inform decisions regarding capital funding. Future capital funding decisions are conditional upon demonstrated adherence to government’s capital procurement policies.

The Ministry of Finance has advised that over the coming months there will be informational sessions presented on the province’s capital and procurement policies, including usage of the Audit Tool. BCCA is hoping to be involved in these information sessions and will keep you informed. It is expected that shortly there will be additional information issued about the Audit Tool including some Q & A responses; refer to the Ministry of Finance website at http://www.fin.gov.bc.ca/tbs.htm

 

 

 

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December 22, 2015

Construction File: Onerous Bidding Conditions in 2015
The soon-to-be-published ‘Building a BC Construction Innovation Strategy’ (a joint initiative of BCCA and the Home Owner Protection Office) points out one of the biggest hindrances to innovation and productivity in the construction industry: the inequitable allocation of risk down the supply chain to those least able to support it.
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July 20, 2015

Construction File: Liquidated Damages Clauses
By their very nature, liquidated damages clauses in contracts cause an adversarial relationship to exist from the outset on a construction project. Such clauses are used in contracts to assign financial responsibility to the contractor for damages that are likely to be incurred by the owner if the specified schedule is not met.
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July 20, 2015

Construction File: Job Order Contracting
To support public owners in their efforts to hold themselves accountable to taxpayers through fair open, and transparent procurement practises, the BCCA offers Thresholds for Procurement of Publicly Funded Construction policy.
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May 15, 2015

Construction File: The Importance of Planholder Lists
Providing Planholder Lists to members is a core service provided for decades by the Construction Associations all across Canada. For example the Construction Association of Victoria, which started in 1912 as a Builders Exchange, is the oldest Construction Association west of Winnipeg and it has likely collected Planholders Lists almost from the very beginning of its 95 year existence.
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May 08, 2015

Construction File: Post Closing Over Budget Negotiations
The rationale of the tender process is to replace negotiation with competition and, subject to the terms of the tender documents, negotiation is generally not permitted in the tender process. One of the primary reasons why negotiation is not permitted is to prevent bid shopping. Generally, where the tender documents expressly permit negotiation, negotiation is only permissible so long as it is consistent with what is expressly provided in the tender documents.
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March 01, 2015

Construction File: The Pitfalls of Incomplete Contract Documents
In providing a price, contractors expect that the contract documents are complete and reflect the project requirements, and that any changes, errors or omissions from the documents will lead to a change order with commensurate adjustment to both the contract price and duration. As the bidding is done in a competitive environment, contractors and their subcontractors are reluctant to add allowances to their tendered price, fearing that they will not be successful as low bidder.
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February 01, 2015

Construction File: BidCentral - By the Industry for the Industry
Since the early days of Building Exchanges, facilitating and managing public construction bids has been a focal point for construction associations. The BC Construction Association (BCCA) and its regional construction association partners BCCA North, Southern Interior Construction Association, BCCA Vancouver Island and Vancouver Regional Construction Association, are no exception to this rule.
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June 17, 2014

Construction File: Prompt Payment Creates a Sustainable Industry
Construction work is project based, with unique project teams assembled through a tendering process. These project teams typically involve an owner who is the buyer of construction services from a general contractor, who in turn employs sub-contractors and often sub-sub-contractors. Add numerous suppliers to the mix, at all levels of the contracting pyramid.
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January 30, 2014

Construction File: Fair Markups on Changes to the Work
The impact of changes in the scope of work – both time and money – is probably the single most disputed issue in construction. Therefore, in order to keep the project moving toward completion, the contractual provisions governing changes must be fair as well as effective in encouraging the timely resolution of cost and time issues. However, feedback from contractors is that change order markups are a major issue. Two decades ago, the discussion about markups on changes to the work was not as intense as it is today. What has changed?
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August 20, 2013

Construction File: BidCentral implements new e-bonding
When the British Columbia Construction Association (BCCA) introduced online bidding three years ago – in the form of the BidCentral platform – there was one element of the process anticipated to go through the most significant evolution: the protocol for the submission of bid bonds online. Or, as it has now commonly become known: e-bonding.
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April 18, 2013

Construction File: Aboriginal Business Enhancement and Set-Aside Programs
With little to no exception, all levels of government within Canada have an aspiration to further economic development through their purchasing conduct – often highlighting specific populations and objectives. In addition to established policies, public sector entities continue to learn and expand policy and processes to do with minority groups such as Aboriginal suppliers. Recent examples in our province can be drawn from tenders for civil construction projects where preference is given to contractors who hire Aboriginal workers or who engage in Joint Venture with Aboriginal companies.
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January 03, 2013

Construction File: Liquidated Damages Clause
A liquidated damages clause will be enforceable where it represents a genuine pre-estimate of the damages an owner will likely suffer as a result of a contractor’s delay. However, where a liquidated damages clause is excessive and objectively unreasonable, it will likely be considered a penalty clause and will be unenforceable.
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February 13, 2012

Construction File: Onerous Bidding Conditions Continue to Trouble Industry
In our January 2007 Construction File we published how we were going to be issuing Contractor Alerts to bring attention to the onerous clauses that contractors see as an impediment to bidding on projects. In the five years since we introduced this protocol we have issued several Contractor Alerts. On the projects where it has been used it has been effective in educating contractors of the risks of onerous bidding conditions.
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December 08, 2010

Construction File: Outsourcing = Best Value
Government agencies in BC are facing increasingly tight budgets and the need to efficiently allocate scarce resources is critical. In order that the taxpayers can receive the best possible services, agencies must focus on their core activities and seek to outsource others to private industry.
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April 01, 2010

Construction File: Tercon Decision Important for Construction Industry
“Egregious behaviour”. Behaviour seen as “an affront to the integrity and business efficacy of the tendering process”. So said the Supreme Court of Canada in its reasons for judgment in the recent Tercon Contractors Ltd. Appeal. They were referring to the actions of the BC Ministry of Transportation and Highways, during the tendering phase of a public construction project.
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March 01, 2010

Construction File: Trade Contractors in Post Bid Negotiations and Trade Agreements
The prospect of a major construction job generally initiates a cascade of invitations to bid from the owner, to general contractors, to subcontractors, to suppliers and other participants. The invitations generate a corresponding flow of bids upwards along the same food chain. Each compliant bid submitted along that food chain creates a bid contract between the party seeking bids and the bidder which, generates corresponding obligations as expressly and impliedly set out in the bid documents.
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December 21, 2009

Construction File: The Cost of Onerous Bidding Conditions
In the June 2002 BCCA Bulletin we published an article called ‘A Fine Day to be a Lawyer’. At that time we expressed concerns about the implementation of the BC Government’s Capital Asset Management Framework and in particular the removal of the BC Government’s Standard Stipulated Sum contract, which was removed under the guise of reducing red tape.
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September 14, 2009

Construction File: BCCA introduces the Electronic Bidding System
The BCCA Electronic Bidding System is one component of the on-line bidding tools that were developed by BCCA along with Infinite Source Systems. What has been built is a seamless system that has the capability to eventually include everyone in the bidding chain from material suppliers bidding to subsubcontractors through to the general contractors bidding to owners.
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May 06, 2009

Construction File: Liquidated Damages Clause
By their very nature, liquidated damages clauses in contracts cause an adversarial relationship to exist from the outset on a construction project. Such clauses are used in contracts to assign financial responsibility to the contractor for damages that are likely to be incurred by the owner if the specified schedule is not met.
Read More
September 10, 2008

Construction File: Pre-qualification Contributes to the Rising Cost of Construction
Why is it that BCCA is adamantly opposed to pre-qualification of contractors as general practice? In a nut shell, it is because of the subjectivity of the process. As a general practice we don’t see that it can be completely fair, open and transparent. Somewhere in the methodology, a decision is made that affects a contractor’s right to do business with the government based on some subjective consideration.
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April 16, 2008

Construction File: Use of Standard Documents Reduces Risks
When documents contain clauses that discourage contractors from bidding, raise the costs associated with bidding, add onerous risk, or limit the competition to a select few bidders, it may come at a cost to the owner. Such an outcome creates the potential for unfairness or misuse of public funds.
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April 15, 2008

Construction File: Use of Standard Documents Reduces Risks
When documents contain clauses that discourage contractors from bidding, raise the costs associated with bidding, add onerous risk, or limit the competition to a select few bidders, it may come at a cost to the owner. Such an outcome creates the potential for unfairness or misuse of public funds.
Read More
March 21, 2007

Construction File: The Importance of Planholder List
Providing Planholder Lists to members is a core service provided for decades by the Construction Associations all across Canada. For example the Construction Association of Victoria, which started in 1912 as a Builders Exchange, is the oldest Construction Association west of Winnipeg and it has likely collected Planholders Lists almost from the very beginning of its 95 year existence.
Read More
January 02, 2007

Construction File: BCCA to Issue Onerous Bidding Alerts
In an effort to advise contractors of the risks associated with onerous clauses in bidding documents, the BC Construction Association will be issuing Contractor Alerts. The Alerts are intended to bring attention to the onerous clauses that some contractors see as an impediment to bidding on projects.
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November 30, 2006

Construction File: Myths of Gold Seal Requirements as a Condition of Contract
Recently there have been public owners who have implemented requirements for certification for Site Superintendents as a condition of contract on construction projects. The certification has been the CCA Gold Seal certification with the alternative requirement that the Site Superintendent be indentured in the Gold Seal program within a specified time period, after award of contract.
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July 17, 2006

Construction File: Why The Public Construction Council of BC?
The Public Construction Council of BC has just begun its fourth decade in existence. It has not survived this many years without having good reason for its continued existence. One of the mandates of the Council is to maintain guidelines which promote open, fair and transparent bidding.
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May 19, 2006

Construction File: Procuring Trade Contractor Bids
There has been a lot of discussion regarding the positive amount of construction on the books and being planned for British Columbia over the next few years. One area of concern that we hear from many stakeholders in the industry is where we are going to find the trade contractors with people to build our facilities and infrastructure.
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January 11, 2006

Construction File: Maximizing Competitive Bidding
Given the environment for bidding in these busy times, we believe that owners are competing with each other for the strained resources of the industry. To attract contractors to bid your project and to ensure you are maximizing the competition, we recommend the following...
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January 01, 2005

Construction File: A Guide to the Use of Cash Allowances
Cash allowances are recommended where it is impossible to clearly define the scope of a particular item of work, where it is difficult for bidders to accurately estimate the cost of a particular item of work or where access to certain building systems may limit the bidding competition.
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October 01, 2003

Construction File: Addressing Holdbacks
The most common reasons for withholding funds on a construction project are as follows: There may be a statutory requirement for a holdback, as is the case under the Builders Lien Act, or there may be a contractual agreement to holdback funds, generally in the event of deficiencies in the work.
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