Construction Contracting Guidelines for First Nations and Aboriginal Communities

2.3.1

It should be the policy of the band to call public tenders to ensure best value, except where the cost is minor and public advertising is not feasible; or in the case of an emergency.

2.3.2

Obtaining tenders by direct invitation should be restricted to the situations mentioned in Section 2.3.1. (For additional information and guidance refer to Appendix 2-2.)

2.3.3

All bidders must bid on identical information and terms, and must be treated equally.

2.4.1

The documents which make up the tender package will depend on the size of the construction or repairs project:

1. For projects valued up to $25,000, the Work Order contract form may be used. The tender documents would consist of:
   • the invitation to tender
   • the work order form (see Appendix 2-7)
2. For projects valued between $25,000 and $100,000, a Minor Works Construction tender and contract form may be used. The tender documents in this case would consist of the following attached as Appendix 2-8 (samples only):
   • Instructions to Bidders,
   • Tender and Acceptance Form,
   • General Conditions,
   • Labour Conditions, (Provincial)
   • Insurance Schedule, (if specified)
   • Plans and Specifications, and
   • Contractors Qualification Statement.
3. For projects valued in excess of $100,000 The Standard Construction contract form should be used and in this case the tender documents would consist of the following attached as Appendix 2-9 (samples only):
   • Instructions to Bidders,
   • Tender Form,
   • Articles of Agreement,
   • Terms of Payment,
   • General Conditions,
   • Labour Conditions (Provincial),
   • Insurance Schedule,
   • Contract Security Conditions,
   • Plans and Specifications, and
   • Contractors Qualification Statement.
4. Band Councils may wish to develop their own tender and contract forms in consultation with their legal representative.

2.4.2

The band representative must make sure that plans and specifications are ready for the tender call.

2.4.3

Labour conditions should be accompanied by a wage rate schedule which the band representative may obtain from the provincial department of labour where the project is located.

2.4.4

All other tender documents are prepared by the band representative.

2.4.5

The band representative arranges for the assembly of the complete tender package.

2.5.1

The band representative determines the area of advertising, which should be small enough to promote the employment of local labour but broad enough to ensure adequate competition. In general, jobs estimated at $500,000 or less are advertised locally, works estimated at more than $500,000 but not less than $2,000,000 are advertised within the region, and works estimated at more than $2,000,000 are advertised on a national basis.

2.5.2

The band representative decides:

1. the band office or offices at which tender documents may be obtained or inspected;
2. the builder's exchange at which tender documents will be on view;
3. the tender closing time and date; and
4. whether tender documents are to be on display at local post offices and other band offices, and if so, which one.

2.5.3

The band representative is responsible for making a list of newspapers in which the tender advertisement is to appear.

2.5.4

Normally, only one advertisement is inserted in each newspaper for each tender call. (See sample at Appendix 2-10).

2.5.5

The Band Council may combine more than one project in an advertisement in order to save money.

2.6.1

Tender documents will be issued from the offices indicated in the tender advertisement.

2.6.2

Tender documents should be displayed as widely as possible within the general advertising area of the tender call. Tender documents for small jobs should be displayed at band offices, builder's exchange, and local post office.

2.6.3

Documents for "invited" tenders are normally supplied only to those contractors who have been directly invited to tender. However, other contractors who specifically request tender documents and ask to be allowed to tender should not be refused.

2.6.4

Normally, tender documents are issued only to general contractors and major trades. Other persons may view documents at the display locations set out in the tender advertisement. Normally, only one set of documents is issued to each contractor; a maximum of two sets may be issued to one contractor provided the required deposit is supplied for each set.

2.6.5

If the distribution of tender documents is restricted in any way, enough sets must be available for display and viewing.

2.6.6

The offices issuing tender documents are responsible for informing the tender calling office of the names of contractors who have asked for documents.

2.6.7

Requests from the public for the names of contractors who have taken tender documents should be agreed to.

2.6.8

Deposits for tender documents should be for the following amounts:
Estimated Contract Value of

Deposits should be in the form of cheques drawn on recognized financial institutions, bank drafts or other similar financial instruments made payable to the Band Council. Cash is acceptable.

2.6.9

Deposits for tender documents should be handled as follows:

1. If refundable, deposits in the form of cheques, bank drafts, etc. will be held uncashed in a safe place by the tendering office until the tender documents are returned to the tendering office in good condition. If the tender documents are not returned within the required time, deposits will be credited to the Band Council. Cash deposits will be deposited immediately.
2. The successful bidder's deposit for tender documents is sometimes returned after issuance of the contract award letter, and he/she keeps the tender documents. However, the deposit will not be returned before the contract award letter has been sent as it could indicate that the contract has been awarded to him/her.

2.6.10

1. In addition to the general practice of displaying tender documents at band offices, construction associations/builders' exchanges and local post offices, documents may be provided on request to microfilm companies at no charge and to publishing companies on payment of the required deposit.
2. Band Councils may wish to ask for non-refundable payments for tender documents. Contractors would not be required to return the tender documents nor would they have their payment returned. The payment would automatically be deposited. This would help to pay for the costs of producing tender packages.

2.7.1

The band representative decides for each project which trades will be listed in the tender form. (Refer to Appendix 2-3 for guidance on selecting these trades).

2.7.2

The low bidder will be given 48 hours after being asked to do so by the band representative during the tender review period, to provide the name of the subcontractor for each of the listed trades.

2.8.1

Addenda to the plans and specifications are prepared by the band representative in consultation with the band's technical expert. Addenda to the tender documents, other than the plans and specifications, are prepared by the band representative.

2.8.2

Addenda prepared by the band representative are sent to the tender calling office for distribution.

2.8.3

The tender calling office distributes addenda to all recipients of the tender documents by registered mail.

2.8.4

Normally addenda are not issued less than 14 days before the tender closing date.

2.8.5

An addendum is not issued verbally. In exceptional circumstances, the tender calling office may issue an addendum by fax.

2.8.6

The office issuing the addendum confirms, before the tender closing date, that all contractors who have taken out tender documents, and all offices which display or issue tender documents, have received the addendum.

2.9.1

The tender closing date established and published in the tender advertisement should be changed only in the most exceptional circumstances.

2.9.2

Notices of change of tender closing date should be issued at least one week before the original tender closing date.

2.9.3

The tendering office notifies all contractors who have drawn tender documents, by registered mail, of any changes of tender closing date, and all offices at which tender documents are on display or are available.

2.9.4

When a contractor has placed a tender in the mail before the extension, he/she should be advised that the tender may be amended providing the amendment is received at the designated office before the revised closing date.

2.10.1

Only tenders submitted on the form supplied by the Band Council and delivered to the designated office before the time set for reception of the tenders should be considered.

2.10.2

Tender amendments in writing or by fax are permitted and will be considered if received prior to the time designated for reception of tenders.

2.10.3

All tender envelopes and amendments are to be stamped with the time and date upon receipt by the tendering office. Fax amendments will be stamped with the time and date upon receipt. The band representative should ensure a check is made immediately before the tender closing time to determine if any fax amendments have been received.

2.10.4

All tender envelopes received are kept unopened by the tendering office in a locked cabinet until the time and date set for the opening of tenders.

2.10.5

Tenders are received only at the office designated in the tender advertisement for the receipt of tenders. A contractor delivering tenders to any other office is to be instructed to deliver them to the designated office.

2.10.6

Under no circumstances are the names of bidders or the number of bids received given out to anyone before tenders are opened.

2.10.7

Except as prescribed in 2.10.9 and 2.10.16 below, no tenders or amendments received after the exact time designated for the closing of tenders are considered. Tenders received late are returned unopened to the bidder with an explanatory letter. In these cases, both sides of the tender envelope should be photocopied and the photocopies should be placed on file for future reference.

2.10.8

A bidder will be permitted to withdraw his/her tender before the tender closing time and date, if a request is received in writing prior to this time, and is signed by a responsible officer of the firm.

2.10.9

If no tenders are received by the time and date set for the closing of tenders, any late tenders which have been mailed and are post marked before such closing time and date and received within 48 hours after the closing time and date may be considered.

2.10.10

Tenders should be opened immediately or as soon as practicable after the closing time. Public tenders are opened in public. "Invited" tenders are opened in the presence of only those contractors who have submitted bids, if they so request.

2.10.11

Tenders are opened by the band representative or by a responsible official designated by her/him. The opening is witnessed by a second responsible official.

2.10.12

After the official time set for closing of tenders, but before their opening, the responsible officer announces to those present for the opening:

1. the official name of the project;
2. that all tenders received will be subject to audit and technical assessment before any recommendation is made for contract award; and
3. that no questions concerning tenders will be entertained at the opening.

2.10.13

As tenders are opened, the responsible officer announces only:

1. the name and address of each bidder;
2. the amount of each bid, including total amount of any amendments and revised total tender amount.

The second responsible officer records this information on the tender opening report as well as the type and amount of bid security, if security was called for in the tender document.

2.10.14

The two officers opening tenders initial all tenders, amendments and sign the tender opening report.

2.10.15

Decisions relative to the acceptability or disqualification of a tender are not to be made during the formal tender opening.

2.10.16

An amendment, reducing the low bid, which has been received after the tender closing time will be considered as a post-tender negotiation. If the low bidder insists on withdrawing the late amendment which reduced his/her tender, the Band Council cannot insist that the amendment be allowed to stand. It is in the best interest of the band, however, to obtain the best possible tender price for a project and consequently the low bidder should be encouraged to honor the late amendment.

2.10.17

An amendment increasing the low bid and received after the tender closing time will not be considered. Cases have arisen where amending faxes increasing the low bid on a project have been sent in ample time, but due to delays, the faxes have been delivered after the time set for the receipt of tenders. In such cases, the late amendments cannot be considered. However, when there is evidence of a substantial error in the low tender the procedure detailed in 2.12.8, dealing with withdrawal will be followed.

2.10.18

Enquiries for tender results after opening are answered with only the names and addresses of bidders, and the total amounts of the bids.

2.11.1

For tenders over $25,000, the Band Council should request bid security of at least 10% of the tender price to guarantee entry into contract. (See Appendix 2-6 for an approved form for the bid bond). In special circumstances the project manager may decide to call for tender security for projects estimated at less than $25,000. The types of bid security acceptable to, and the amounts of such bid security required by the Band Council might consider asking for are those described in Appendix 2-4.

2.11.2

If a tender, for which tender security is required, is not accompanied by such security, then the tender should be disqualified during the tender review period, except in the situation described in 2.11.6.

2.11.3

When a tender is less than $25,000 and no bid security has been provided, a bidder who amends her/his tender to an amount in excess of $25,000 must ensure that bid security is provided by the time set for the reception of tenders. If this is not done, the tender should be disqualified during the tender review period, except in the situation described in Section 2.11.6.

2.11.4

from a bonding company before the time set for reception of tenders that a bid bond has been issued but not in sufficient time to be available for tender opening, the tender must be disqualified during the tender review period since the requirement to provide security has not been adequately met. An exception is described in Section 2.11.6.

2.11.5

In cases where the bid bond submitted with a tender has not been signed by the contractor (principal), the bid bond is acceptable as security provided all other details on the bond have been correctly filled out. The contractor should be asked to sign the document before the contract is awarded.

2.11.6

If as a result of a tender call only one tender is received and such tender does not meet the bid security requirement of the tender documents, then the tender should not be disqualified if it is acceptable to the Band Council in all other respects. The band representative must however ensure that the bidder supplies to the Band Council the required bid security as a post-tender negotiation.

2.11.7

Bid security is handled as follows:

1. Security deposits received with a tender: after the opening of tenders, all security deposits except those from the two low valid bidders are returned by registered mail. If a security deposit from one or both of the two low bidders is a certified cheque or a government guaranteed bond, it is held uncashed by the tendering office until the contract is awarded.
2. Bid bonds received with a tender: after the opening of tenders all bid bonds other than those from the two low valid bidders are returned.

2.11.8

If the bid security received with the lowest tender is not in the proper amount or form, the lowest bidder is allowed 48 hours to rectify the situation if the security is:

1. marginally less than the amount required;
2. a certified cheque on other than an acceptable banking institution;
3. a bid bond issued by a company whose bonds are not acceptable to the Band Council; or
4. a bid bond not in the approved form.

Failure to replace it with security in the proper amount or form within 48 hours results in rejection of the tender.

Where it is evident that the low bidder has purposely submitted a bid security substantially less than the amount required, the Band Council should consider rejecting the tender without allowing the bidder the opportunity to submit the correct amount of bid security.

2.11.9

A security deposit from a person or party other than the bidder, or from one of the parties to a joint tender, is not returned to that person or party unless specific instructions are submitted with the tender. If no specific instructions are received, the deposit is returned to the bidder, that is personally to a sole tenderer; jointly to the persons submitting a joint tender; and, to the company submitting a tender.

2.12.1

After the tenders have been opened, they shall be forwarded to the band's project manager for technical review and assessment.

2.12.2

The band representative is responsible for the administrative review of all tenders, including the identification of anomalies, alternatives and qualifications.

2.12.3

The tenders will be assessed for the following:

1. comparison with the Band Council's estimate;
2. accuracy of tender computations; (refer to Appendix 2-5 for additional guidance)
3. completeness of the tender in all respects;
4. extent of compliance with local contract requirements;
5. evaluation of alternatives which may have been included in the tender;
6. availability of adequate equipment to carry out the work;
7. previous record with the Band Council; and
8. capability to undertake the full extent of the work.

2.12.4

A tender will normally be disqualified for the following reasons:

1. failure to tender on the band's tender form or to complete the tender form in all respects;
2. failure to bid in accordance with the requirements of the tender documents; and
3. failure to supply proper tender security within 48 hours (as per 2.11.8).
4. the contractor is unable to provide the necessary equipment to undertake the work;
5. the contractor is unable to carry out the full extent of the work;
6. a previous unsatisfactory record with the Band Council; or
7. unbalanced unit prices included in the tender;
8. if it is a conditional or qualified bid.

2.12.5

All recommendations by the band representative to disqualify a tender should be submitted to Band Council for approval.

2.12.6

A disqualification situation does not exist where a bidder has agreed to withdraw the tender. While withdrawal could occur for the reasons outlined in 2.12.4.d and 2.12.4.e above, it is unlikely to arise under 2.12.4.f and 2.12.4.g (refer also to 2.12.7 dealing with withdrawal).

2.12.7

If the two lowest tenders submitted are identical in price and all other conditions are equal, the recommendation to award must take into account the following criteria:

1. A bidder with an overall satisfactory performance record is to be given preference over a bidder who is known to have an unsatisfactory performance record.
2. Where delivery is an important factor, the bidder offering the best delivery date is to be given preference.
3. A tenderer who is in a position to provide adequate after-sales service and has a good record in this regard is to be given preference over a bidder who is not in position to provide adequate service or who has a poor record.
4. Where bid security was a requirement of the tender call and a request to withdraw a tender is received during the tender review period, a decision should only be made after reviewing the bid security conditions. In cases where bid security is not involved, such requests may be dealt with immediately upon request.

NOTE: In cases where a low bidder asks to withdraw his/her tender because of a proven substantial error in its preparation, the Band Council may permit the low bidder to withdraw the tender without penalty and award the contract to the second lowest valid bidder who, in effect, becomes the low bidder.

2.12.8

If the tender of the low bidder is too high in relation to the Band Council estimate, the following practice should apply:

1. The Band Council should negotiate with the low bidder to obtain a reduction in price provided the change in the scope of the work is minor in nature and that the reduction being sought is less than 10% of the value of the low tender. If the Band Council is unable to obtain a satisfactory reduction in the low tender in relation to the changes proposed, then the Band Council may authorize the inviting of new tenders from the three low bidders on the original tender call.
2. When changes in the scope of work are estimated to exceed 10% of the value of the low tender, tenders should be invited from at least the three low bidders with consideration being given to re-inviting bids from all bidders on the original tender call.
3. Where changes in the scope of the work take on major proportions or substantially change the character of the work, consideration should be given to recalling public tenders.
4. Prior to re-inviting or recalling tenders, the band should make some changes to the plans, specifications and tender form so as to change the extent of the work being retendered.

2.13.1

In cases where it appears advisable not to proceed with an award of contract after receipt of tenders, the Band Council may approve cancellation of the tender call. The file should contain the reasons for cancellation. All contractors who submitted tenders should be informed of the cancellation.

Assembling Tender Documents

Band Representative

1. Obtains from provincial ministry of labour the minimum rates of pay for the labour trades and labour conditions.
2. Ensures final plans and specifications are available.
3. Prepares, in consultation with the band's project manager, technical instructions for bidders with a detailed breakdown of quantities and units of measure (where applicable), a detailed cost estimate, and determines the contract completion date.

Tender Advertising

Band Representative

4. The band representative establishes the following in consultation with the Engineer:
   1. the time and date tenders are to be received;
   2. the office or offices from which tender documents will be issued;
   3. the builder's exchanges at which tender documents will be available for display;
   4. the number of sets of tender documents which will be available at each display point; and
   5. the locations in which the tender call will be advertised.
5. Prepares tender advertisement.
6. Assembles one complete set of tender documents into a complete tender package.
7. Reviews complete tender package to establish any special instructions to bidders and the need or otherwise for each of the individual tender form pages.
8. Prepares required number of complete tender packages in accordance with approved sample.
9. Prepares list of newspapers in which the tender call will be advertised.
10. Forwards appropriate number of complete sets of tender documents and copies of advertising notices to distributing offices and each of the builder's exchanges at which they will be displayed.
11. Prepares and sends publication orders to newspapers.

Distribution of Tender Documents

Tender Distribution Office

12. Issues tender documents to contractors in return for appropriate deposit.
13. Holds tender document deposits uncashed in safe until plans and specifications are returned in good condition.
14. Reports the names of contractors who have taken tender documents to the tendering office.

Band Representative

15. Answers, as required, queries from the public and from construction associations as to those contractors who have taken tender documents.
16. Prepares amendments to tender documents if required. Prepares addenda to plans and specifications in consultation with the project manager.
17. Issues addenda to all persons who have taken tender documents and requests acknowledge-ment from the contractors.
18. Issues addenda to all offices at which tender documents are displayed.

Extension of Tender Closing Date

Band Representative

19. Receives requests for extension of tender closing date (from contractor, construction association, etc).
20. Reviews request with Band Council where appropriate.
21. If request is approved, prepares extension notice.
22. Sends copies of the notice to all offices where the tender documents are on display. Advises by registered mail all contractors who have taken tender documents.

Receipt and Opening of Tenders

Band Representative

23. Receives sealed tenders and amendments from contractors. Stamps date and time of receipt.
24. Prepares tender opening worksheet including names of bidders and of any amendments as they are received.
25. Holds unopened tenders and amendments in a locked cabinet until the time and date set for opening.
26. Immediately after the time of the tender closing, removes sealed tender envelopes from locked cabinet. Checks that all envelopes relate to the specific tender call and that all envelopes and amending telegrams match the tender opening worksheet.
27. Attends official tender opening as Band Council representative.
28. Initials all tenders and amendments during the opening and has the official witness do the same.
29. Checks bid security received for completeness, eligibility and amount. Notes details of bid security on face of each tender.
30. At the opening, discloses only the individual bidder's name and address, the total amount of the tender. Calculates any revisions by amendments and announces the revised total tender amount. All information is recorded on tender opening worksheet and signed by both the band representative and the official witness.
31. After tender opening, returns bid security of all but the two low bidders. If the securities retained are certified cheques, government guaranteed bonds, bid bonds etc, holds them in the tender office in a locked cabinet until the tender is accepted or rejected.
32. Photocopies both sides of the envelopes of the late tenders and places the photocopies on file for future reference.
33. Returns any late tenders unopened to the bidders with appropriate letter.
34. Prepares tender docket and forwards all tender documents and schedule of tenders to the Band Council.

Review of Tenders

Band Representative / Project Manager

35. Reviews tenders for conformance with requirements and makes recommendation for award to Band Council

Cancellation of Tender Call After Receipt of Tenders

Band Representative

36. In cases where the tender call must be cancelled after tenders have been called and received, consults with the Band Council and cancels the tender call.
37. Files a copy of the tender summary and reasons for cancellation.
38. Returns the bid security of the two low bidders with a letter informing them of the cancellation and thanking them for submitting tenders

Sample Letter of Invitation to Tender

Date: / /

To: __________________________________ contractor

__________________________________

__________________________________ address

__________________________________

__________________________________

_Re: Project No _________________________________

_Project Title: _________________________________

You are invited to submit a tender for the referenced work. The tenders will be received until (time) _______________________ am/pm (date)_______________________.

Your tender must be submitted in accordance with the requirements of the attached tender documents.

For additional information in connection with this invitation to tender please contact

___________________________________ (Band Representative)

___________________________________

___________________________________ (Address of Band Representative)

___________________________________

Yours truly,

____________________________________

____________________________________

____________________________________

Work Order for Construction Works up to $25,000

Subject to the GENERAL CONDITIONS and in accordance with your quotation dated ____________ you are authorized to proceed with the work described below.

Contractor's name and address:

Send invoice to:

Location of work - ___________________________________________________________________________________________________________

Description of work -
______________________________________________________________________________________________________________________________ ______________________________________________________________________________________________________________________________

Special Instructions -
_______________________________________________________________________________________________________________________________ _______________________________________________________________________________________________________________________________

Start Date

Completion Date

Work authorized by Band Representative
Signature
Date

Work cost including applicable taxes except GST
$ (GST extra)

General Conditions

1. Execution of the Work. The Contractor shall furnish all necessary labour, materials, tools and equipment and shall carry out in a careful and workmanlike manner and to the satisfaction of the Band Representative, the work set out under the work description hereon, or more particularly described in the drawings and specifications when applicable. All materials used in the execution of the work must be new and of the best quality.
2. Changes. Changes to the work shall only be made on receipt of written instructions from the Band Representative. Any resulting adjustment to the cost of the work shall be agreed upon by the Band Representative and the Contractor and will represent the reasonable and proper costs incurred by or savings accruing to the Contractor.
3. Time of Essence. Time is of the essence of the contract.
4. Labour. Consistent with efficiency and economy, the Contractor shall employ only local labour to the extent that such labour is available and qualified and shall make use of the Band office in the recruitment of such labour.
5. Permits and By-Laws. The Contractor shall comply with all laws and regulations relating to the work, whether Federal, Provincial of Municipal, as if the work were for a person other than the Band Council, and shall pay for all permits and certificates required in respect of the work.
6. Indemnification. The Contractor shall indemnify and save harmless the Band Council from and against all claims, losses, costs, damages, suits, proceedings or actions arising out of or related to the Contractor's activities in executing the work, including his omissions, improper acts or delays in executing the work.
7. Property of the Band Council. The Contractor shall be liable to the Band Council for any loss or damage to any property of the Band Council arising out of the performance or non-performance of the work whether or not such loss arises from causes beyond his/her control.
8. Co-operation and Making Good. (a) The Contractor shall perform the work with the minimum disturbance to personnel and the public. (b) The Contractor shall obtain the approval of the Band Representative for the hours during which he/she proposes to perform the work and for the work schedule. (c) The Contractor shall repair and make good all parts of the existing building affected by the work of the contract. (d) All work shall be equal in kind, quality and finish to that of the existing work. (e) Where the work affects occupied portions of a building, the Contractor shall ensure continuity of building services and necessary access for personnel and vehicles.
9. Access to Work. The Contractor shall permit the Band Representative or any officer authorized by him/her to have access to the work at all times during the execution of the work.
10. Remove Debris. The Contractor shall remove from the premises, from time to time and as directed by the Band Representative, all building rubbish or debris resulting from the work.
11. Delay. No payment shall be made to the Contractor for delay encountered during the execution of the work.
12. Suspension of Work. In the event that the work is suspended, the Contractor shall arrange for protection of the work as directed by the Band Representative. The Contractor will be reimbursed for reasonable and proper expenses incurred in protecting the work.
13. Rectification of Defects. The Contractor shall, upon notice from the Band Representative, rectify at his/her own expense any defects which appear in the work within 12 months of the date of completion of the work.
14. Signs and Advertising. The Contractor shall not erect or permit the erection of any sign or advertising at the site of the work.
15. Members of the Band Council. No member of the Band Council shall be admitted to any share or part of the contract or any benefit arising therefrom.
16. Interpretation. Should any dispute arise concerning the meaning or intent of the contract, the decision of the Band Representative shall be final.
17. Records to be Kept. The Contractor shall during the term of this contract and for a period of two years from the date of completion of the contract maintain and keep full records of his/her estimates of and actual cost to him/her of the work together with all proper quotations, contracts, correspondence, invoices, receipts and vouchers relating thereto, and shall make them available for copy, audit or inspection by any person acting on behalf of the Band Council.
18. Termination. The Band Representative may terminate the contract by giving notice in writing to the Contractor to that effect. The Band Council's obligation to make payment to the Contractor shall cease when payment for work satisfactorily performed has been made.
19. Payment. The Contractor may submit monthly progress claims. Subject to verification by the Band Representative, payment of the Contractor's invoice for work satisfactorily completed shall be made not later than 30 days after receipt thereof. If, within 15 days of receipt of the invoice, additional information is requested by the Band Representative, the 30 day payment period shall commence upon receipt of the requested information. Any monthly progress payment made to the Contractor shall be subject to a 10% holdback which shall be released to the Contractor with the final payment unless the amount held back is required by the Band Council to remedy any defect in the Contractor's work. The Contractor's invoice is to show the amount being claimed for work satisfactorily performed, excluding GST charges, and a separate amount for the GST calculated in accordance with the applicable tax legislation.

20. Interest on Overdue Accounts. If the Band Council fails to make a payment that is due in accordance with Clause 19, and such payment is overdue for 15 days or more after the due date, the Contractor shall be entitled to receive interest on the amount that is overdue from the date on which the amount is overdue to the day previous to the date on which the overdue amount is paid. Such date of payment shall be deemed to be the date on the cheque given for payment of the overdue amount.

    Interest shall be paid automatically on all amounts that are not paid within 15 days of the due date. Interest shall not be paid on amounts paid within 15 days of the due date and the Band Council shall not be liable to pay to the Contractor any interest on unpaid interest.

    The rate of interest shall be the rate of interest charged by the Band Council's Banking institution for that purpose.

21. The Band Council may, in order to discharge lawful obligations of and satisfy lawful claims against the Contractor or a subcontractor arising out of the execution of the work/service pay any amount which is legally due and payable to the Contractor under the contract, directly to the obligees of and the claimants against the Contractor or the subcontractor.

Sample Tender Documents for Construction Jobs Valued Between $25,000 and $100,000

Construction and Repairs Tender and Minor Works Acceptance
Tender and Contract

1. Offer

The undersigned bidder (hereinafter called the "Contractor") hereby offers to the Band Council to supply all necessary tools, plant, services, materials and labour to execute and complete in a careful and workmanlike manner the work set out under the "Description of Works" herein, which is more particularly described in the Plans and Specifications or Scope of Work numbered _______________ and dated _______________ for the ____________________ ( lump sum or unit price) as set out in clause ____________ (3 or 4) hereof.

2. General Agreement

The Contractor agrees:

• 2.1 to complete the work within _________ days from the date of notification of acceptance of this tender.
• 2.2 to provide contract security, in accordance with Clause 4 of the Instructions to Bidders, within 14 days of receipt of notice in writing from the Band Council of the Acceptance of the Contractor's tender.
• 2.3 that this Tender and Acceptance, the Instructions to Bidders, the Specifications referred to in Clause 1 above, the General Conditions, the Labour Conditions and the Insurance Conditions attached to the Specifications or Scope of Work shall be and are the complete tender and this offer is made subject to the provisions contained therein.
• 2.4 that this tender supersedes and cancels all communications, negotiations and agreements relating to the work other than contained in the completed tender.
• 2.5 that this tender may not be withdrawn for a period of 30 days following the tender closing time.
• 2.6 that in the event that bid security is provided with this tender and this tender is duly accepted, such security will be forfeited if the contractor refuses a contract.
• 2.7 that the complete tender together with and subject to all provisions contained therein shall, when accepted and executed by the Band Council constitute a binding contract between the contractor and the Band Council.
• 2.8.1 that he/she will employ the local people listed hereunder for the period specified.

  Trade	Person Months	No. of Persons
  -	-	-
  -	-	-
  -	-	-
  -	-	-
  -	-	-

  (use additional sheet if required)

  and should employment of any person identified be terminated prior to completion of the term indicated above, he/she shall provide the Engineer with justification for such termination, and shall replace such person with a local person to the extent that a replacement person is available and qualified before attempting to recruit elsewhere.

• 2.8.2 that he/she will purchase the following local supplies, if available when required for the work:

  List of Materials:
  -
  -
  -
  -
  -

  (use additional sheet if required)

  and that he/she may substitute such material with other material of his/her choice subject however to the prior approval of the Engineer and subject to the material meeting the requirements of the contract.

• 2.8.3 that he/she shall use the following local pieces of construction equipment if available when required for the project:

  List of Materials:
  -
  -
  -
  -
  -

  (use additional sheet if required)

  and he/she may substitute such equipment with other equipment of his/her choice, subject however to the prior approval of the Engineer.

• 2.8.4 that he/she agrees to implement a formal training program in accordance with clause ______ of the section entitled "____________________________" of the Specifications and that he/she further agrees to engage under the said training program _________ local people listed hereunder for the period specified:

  Trade	No. of Trainee Positions	Proposed Duration of Training hr/pers
  -	-	-
  -	-	-
  -	-	-
  -	-	-
  -	-	-

  (use additional sheet if required)

3. The Contractor agrees that the following is the lump sum referred to in Clause 1 hereof excluding GST:*

(amount to be in words)_________________________________________ ______ dollars ($ ________________)

4. The Contractor agrees that the following are the unit prices referred to in Clause 1 hereof excluding GST:*

* GST equals $

ATTESTED TO AND DELIVERED ON BEHALF OF THE CONTRACTOR

THIS ___________ DAY OF ___________________ 20 ______ IN PRESENCE OF

ACCEPTED AND EXECUTED ON BEHALF OF THE BAND COUNCIL THIS

________________DAY OF ____________________ 20 ______ IN PRESENCE OF

1. Definition of Terms: in the Contract:

1. "the Engineer" means the project manager specifically designated by or on behalf of the Band Council upon the award of this contract, and includes a person specially authorized by the project manager to act on her/his behalf;
2. "work" includes the whole of the works, materials, matters and things to be done, furnished and performed by the Contractor under the contract; and
3. "Band Council" means the Band Council of the ________________________ Band.

2. Assignment and Subcontracting:

3. Members of the House of Commons:

4. Indemnification:

5. Property of Band Council:

6. Permits and By-Laws:

7. Local Labour and Materials:

8. Publicity:

9. Materials, Equipment, Etc. to Become Property of the Band Council:

10. Contractor's Superintendent:

11. Co-Operation with Other Contractors:

12. Claims Against and Obligations of the Contractor or Subcontractor:

1. The Contractor shall ensure that all its lawful obligations and lawful claims against the Contractor arising out of the performance of the Work are discharged and satisfied at least as often as the contract requires the Band Council to discharge its obligations to the Contractor. The Contractor shall provide the Engineer with a Statutory Declaration deposing to the existence and condition of such claims and obligations when called upon to do so.
2. The Band Council may, in order to discharge lawful obligations of and satisfy lawful claims against the Contractor or a subcontractor arising out of the performance of the work, pay an amount, which is to be determined in accordance with Section 12 (c) from money that is due and payable to the Contractor pursuant to the contract directly to the obligees of and the claimants against the Contractor or the subcontractor.
3. The amount referred to in Section 12 (b) shall be that amount which the Contractor would have been obliged to pay to such claimant had the provisions of the Provincial or Territorial lien legislation, or in the province of Quebec, the law relating to privileges, been applicable to the work. Any such claimant need not comply with the provisions of such legislation setting out the steps by way of notice, registration or otherwise as might have been necessary to preserve or perfect any claim for lien or privilege which the claimant might have had.
4. For the purposes of Section 12 (b) a claim shall be considered lawful when it is so determined.
   • 12.(d)i by a court of competent jurisdiction, or
   • 12.(d)ii by an arbitrator duly appointed to arbitrate the said claim, or
   • 12.(d)iii by a written notice delivered to the Engineer and signed by the Contractor authorizing payment of the said claim or claims.
   • (e) A payment made pursuant to Section 12 (b) is, to the extent of the payment, a discharge of the Band Council's liability to the Contractor under the contract and may be deducted from any amount payable to the Contractor under the contract.
   • (f) Section 12 (b) shall only apply to claims and obligations
   • 12.(f)i the notification of which has set forth the amount claimed to be owing and the person who by contract is primarily liable. The notification must be received by the Engineer in writing before final payment is made to the Contractor and within 120 days of the date on which the claimant
   • 12.(f)i.1 should have been paid in full under the claimant's contract with the Contractor or subcontractor where the claim is for money that was lawfully required to be held back from the claimant; or
   • 12.(f)i.2 performed the last of the services, work or labour, or furnished the last of the material pursuant to the claimant's contract with the Contractor or subcontractor where the claim is not for money referred to in 12(f)i.1, and
   • 12.(f)ii the proceedings to determine the right to payment of the claim shall have commenced within one year from the date that the notice referred to in Section 12(f)i was received by the Engineer.
   • (g) The Band Council may, upon receipt of a notification of claim referred to in Section 12(f)i, withhold from any amount that is due and payable to the Contractor pursuant to the contract the full amount of the claim or any portion thereof.
   • (h) The Engineer shall notify the Contractor in writing of receipt of any notification of claim and of the intention of the Band Council to withhold funds pursuant to Section 12(g). The Contractor may, at any time thereafter and until payment is made to the claimant, post with the Band Council security in a form acceptable to the Band Council in an amount equal to the value of the said claim. Upon receipt of such security the Band Council shall release to the Contractor any funds which would be otherwise payable to the Contractor, that were withheld pursuant to the provisions of Section 12(g).

13. Engineer's Rights and Obligations:

1. have access to the work at all times during its execution and the Contractor will provide the Engineer with full information and assistance in order that he/she may ensure that the work is executed in accordance with the contract;
2. decide any question as to whether anything has been done as required by the contract or as to what the Contractor is required by the contract to do, including questions as to the acceptability of, the quality or quantity of any labour, plant or material used in the execution of the work, and the timing and scheduling of the various phases of the work; and
3. have the right to order additional work, dispense with, or change the whole or any part of the work provided for in the plans and specifications. The Engineer shall decide whether anything done or not done as a result of directions given under this subsection has increased or decreased the cost of the work to the Contractor and the amount payable under the contract to the Contractor will be increased or decreased accordingly by an amount calculated in accordance with Section 20.

The Contractor shall comply with any decision or direction of the Engineer given under this section.

14. Delay, Non-Compliance or Default by the Contractor:

15. Changes in Soil Conditions, Delay by the Band Council etc:

1. No extra payment will be made to the Contractor for any extra expense, loss or damage for any reason unless the Engineer shall certify that such extra expense, loss or damage is directly attributable to:
   1. a substantial difference between the soil conditions at the site of the work indicated by plans and specifications and the actual soil conditions found there; or
   2. neglect or delay by the Band Council occurring after the date of contract in providing any information or doing any act which is required expressly by the contract or by usage of the trade, or suspension of the work by the Band Council.
   3. and, the Contractor has within ten (10) days of encountering such soil conditions, or of the commencement of such neglect or delay, given written notice to the Engineer of a claim for such extra expense, loss or damage. The amount of any extra payment to be made under this section will be calculated in accordance with Section 20.
2. If, in the opinion of the Engineer, any difference in soil conditions referred to in subsection (a)(i) results in the saving of expenditure to the Contractor the amount of such saving shall be paid to the Band Council by the Contractor.

16. Protesting Engineer's Decision:

17. Suspension or Termination of the Contract:

1. Band Council may upon notice in writing to the Contractor suspend or terminate the Contract at any time. The Contractor will comply with such notice immediately.
2. If the Band Council terminates the contract because of default by the Contractor, the insolvency of or the commission of an act of bankruptcy by the Contractor, the obligation of the Band Council to make payments to the Contractor shall cease and no further payments shall be made to the Contractor unless the Engineer shall certify that no financial prejudice will result to the Band Council from such further payments. Termination under this subsection shall not relieve the Contractor of any legal or contractual obligations other than the physical completion of the work. In such circumstances the Engineer may complete or have the work completed as he/she sees fit and all costs and damages incurred by the Band Council due to the non-completion of the work by the Contractor shall be payable by the Contractor to the Band Council.
3. If the Band Council suspends the work for 30 days or less, the Contractor must, subject to his/her remedy under Section 15 hereof, complete the work when called upon to do so. If the Band Council suspends the work for a period in excess of 30 days, the Contractor may request that the Band Council terminate the work under subsection 17(d).
4. If the Band Council terminates the work other than in accordance with sub-section (b) the Band Council will pay to the Contractor the lesser of the amount calculated in accordance with Section 20 subject to any additions or deductions otherwise provided by the general conditions or labour conditions less any amount paid pursuant to Section 26(c) and the amount which would have been payable to the Contractor had the contract been completed.

18. Security Deposit:

19. No Additional Payments:

20. Determination of Costs:

21. Records to be Kept:

22. Extension of the Time:

23. Cleaning of Work:

24. Engineer's Certificate:

1. On the day that the work has been completed and the Contractor has complied with the contract and all orders and directions pursuant thereto to the satisfaction of the Engineer, the Engineer will issue to the Contractor a Final Certificate of Completion. In the case of a unit price contract, the Engineer will at the same time issue a Final Certificate of Measurement setting out the final quantities used or employed in respect of the classes and units set out in the unit price table, and any subsequent amendments thereto, under Clause 4 of the Tender and Acceptance, such certificate to be binding upon the Contractor and the Band Council.
2. If the Engineer is satisfied that the work is substantially completed and is acceptable for use by the Band Council he/she may at any time before issuance of a Final Certificate of Completion, issue to the Contractor an Interim Certificate of Completion and shall describe therein the portions of the work not completed to his/her satisfaction and all things which must be done by the Contractor before a Final Certificate of Completion can be issued.
3. The Engineer, before issuing a Final Certificate of Completion, may, in addition to the matters described in the Interim Certificate of Completion, require the contractor to rectify any other portions of the work not completed to the satisfaction of the Engineer and to do any other things necessary for the completion of the work.

25. Rectification of Defects:

26. Payment:

1. The Band Council will pay and the Contractor will accept as full consideration for the work performed and executed an amount by which the amount referred to in Clause 1 of the Tender and Acceptance together with the aggregate of the amounts payable by the Band Council under sections 11, 13(c), 15(a), 16, and 19 exceed the aggregate of any payments by the Band Council under Section 12 and indemnification and amounts payable to or costs and damages incurred by the Band Council under sections 4, 5, 9, 13(c), 14, 15(b), 17(b), 19 and 22.
2. In the case of a unit price contract:
   1. The amount referred to in Clause 1 of the Tender and Acceptance will be deemed to be the amount computed by totalling the products of the unit prices set out in Clause 4 and the actual quantities of such units as set out in the Engineer's Final Certificate of Measurement, subject to any adjustment provided for in subparagraph (ii) of this subsection.
   2. The Engineer and the Contractor may, by agreement in writing, add to the aforesaid unit price table other classes of labour, etc., units of measure, estimated quantities and prices per unit, and may, if the actual quantities as set out in the aforesaid Final Certificate of Measurement exceed or fall short of the estimated quantities in respect of any item(s) shown in the aforesaid unit price table by more than 15%, amend the unit prices shown in the unit price table for such items. Where the Engineer and the Contractor fail to agree on the amount of any adjustment as contemplated by this subsection the revised or new prices per unit shall be determined in accordance with Section 20.
3. The Contractor shall be entitled to receive progress payments upon submitting Progress Claims which must be approved by Progress Reports issued by the Engineer at monthly intervals. The amount to be paid to the Contractor for a progress payment shall be 90% of the value of the work certified by the Engineer in the Progress Report as having been completed since the date of the immediately preceding Progress Claim, if any. When a Labour and Material Payment Bond has been furnished under the Contract, the amount to be paid under this subsection shall be 95% of the value certified by the Engineer.
4. Forty-five (45) days after receipt by the Engineer of the Progress Claim and if the Contractor has made and delivered to the Engineer his/her Statutory Declaration pursuant to Section 12, the amount of the Progress Claim, subject to subsection (c) of this section shall become due and payable.
5. Sixty (60) days after the issue by the Engineer of the Final Certificate of Completion there shall become due and payable to the Contractor the amount described in subsection (a) of this section less the aggregate of the amounts, if any, paid pursuant to subsection (c) of this section.
6. Notwithstanding subsection (c), (d) and (e) of this section, no payments shall be due or payable to the Contractor if he/she has failed to supply a Statutory Declaration pursuant to Section 12, and contract security pursuant to Clause 2.2 of the Tender and Acceptance.
7. A payment by the Band Council pursuant to this section shall not be construed as evidence that the work is satisfactory or in accordance with the contract.
8. Delay in making a payment by the Band Council under this section shall not be deemed to be a breach of the contract. However, subject to subsection (f) of this section, if payment of any progress claim under subsection (c) of this section is not made within fifteen (15) days of the date upon which it becomes due and payable, the Contractor shall be entitled to interest on the amount overdue and the Band Council will, when making payment of the amount overdue, pay to the Contractor interest on the amount overdue calculated for the period of the said delay at the current prime lending rate established by the Band Council's banking institution.
9. The Band Council may set-off against any amount payable or debt due by the Band Council under this contract the amount of any debt due to the Band Council under this contract or any other contract between the Contractor and the Band Council.

27. Insurance:

1. The Contractor shall at his/her own expense, obtain and maintain insurance contracts in respect of the work in accordance with the requirements of the Insurance Conditions.
2. All property damage insurance contracts maintained by the Contractor pursuant to subsection 27(a) shall provide that the proceeds thereof are payable to the Band Council and that the proceeds of a claim under a General Liability Insurance contract are paid to the claimant.

Part I
General Insurance Coverages (GIC)

• GIC 1 Insured

  Each insurance policy shall insure the Contractor, and shall include, as an Additional named insured, the Band Council of the Band.

• GIC 2 Period of Insurance

  Unless otherwise directed in writing by the Engineer, the policies required hereunder shall be in force and be maintained from the date of contract award until the day of issue of the Engineer's Final Certificate of Completion.

• GIC 3 Proof of Insurance

  Within twenty five (25) days after acceptance of the Contractor's tender, the Insurer shall, unless otherwise directed in writing by the Contractor, deposit with the Contractor the Insurer's Certificate of Insurance displayed on page 1 of this document and, if requested, the originals or certified true copies of all contracts of insurance maintained by the Contractor pursuant to the requirements of these Insurance Coverages.

• GIC 4 Notification

  Each Insurance policy shall contain a provision that thirty (30) days prior written notice shall be given by the Insurer to the Band Council in the event of any material change in or cancellation of coverage. Any such notice received by the Contractor shall be transmitted forthwith to the Band Council.

Part II
Commercial General Liability

• CGL 1 Scope of Policy

  The policy shall be written on a form similar to that known and referred to in the insurance industry as IBC 2100 - Commercial General Liability policy (Occurrence form) and shall provide for limit of liability of not less than $2,000,000 inclusive for Bodily Injury and Property Damage for any one occurrence or series of occurrences arising out of one cause. Legal or defence costs incurred in respect of a claim or claims shall not operate to decrease the limit of liability.

• CGL 2 Coverages/Provisions

  The policy shall include but not necessarily be limited to the following coverages/provisions.

  2.1 Liability arising out of or resulting from the ownership, existence, maintenance or use of premises by the Contractor and operations necessary or incidental to the performance of this contract.

  2.2 "Broad Form" Property Damage including the loss of use of property.

  2.3 Removal or weakening of support of any building or land whether such support be natural or otherwise.

  2.4 Elevator liability (including escalators, hoists and similar devices).

  2.5 Contractor's Protective Liability

  2.6 Contractual and Assumed Liabilities under this contract.

  2.7 Completed Operations Liability - The insurance, including all aspects of this Part II of these Insurance Conditions shall continue for a period of at least one year beyond the date of the Engineer's Final Certificate of Completion for the Completed Operations.

  2.8 Cross Liability - The Clause shall be written as follows: "Cross Liability The insurance as is afforded by this policy shall apply in respect to any claim or action brought against any one Insured by any other Insured. The coverage shall apply in the same manner and to the same extent as though a separate policy had been issued to each Insured. The inclusion herein of more than one Insured shall not increase the limit of the Insurer's liability".

  2.9 Severability of Interests - The Clause shall be written as follows: "Severability of Interests This policy, subject to the limits of liability stated herein, shall apply separately to each Insured in the same manner and to the same extent as if a separate policy had been issued to each. The inclusion herein of more than one insured shall not increase the limit of the Insurer's liability".

• CGL 3 Additional Exposures

  The policy shall either include or be endorsed to include the following exposures or hazards if the Work is subject thereto:

  3.1 Blasting

  3.2 Pile driving and caisson work

  3.3 Underpinning

  3.4 Risks associated with the activities of the Contractor on an active airport

  3.5 Radioactive contamination resulting from the use of commercial isotopes

  3.6 Damage to the portion of an existing building beyond that directly associated with an addition, renovation or installation contract. (The care custody and control exclusion shall not apply)

  3.7 Marine risks associated with the construction of piers, wharves and docks.

• CGL 4

  Insurance Proceeds from this policy are usually payable directly to a Claimant/Third Party.

• CGL 5 deductible

  The policy shall be issued with a deductible amount of not more than $2,500 per occurrence applying to Property Damage claims only.

Part III
Builder's Risk - Installation Floater all Risks

• BR 1 Scope of Policy

  The policy shall be written on an "All Risks" basis granting coverages similar to those provided by the forms known and referred to in the insurance industry as "Builder's Risk Comprehensive Form" or "Installation Floater - All Risks".

• BR 2 Property Insured

  The property insured shall include:

  2.1 The Work and all property, equipment and materials intended to become part of the finished Work at the site of the project while awaiting, during and after installation, erection or construction including testing.

  2.2 Expenses incurred in the removal from the construction site of debris of the property insured, including demolition of damaged property, de-icing and dewatering, occasioned by loss, destruction or damage to such property and in respect of which insurance is provided by this policy.

• BR 3 Insurance Proceeds

  3.1 Insurance proceeds from this policy are payable in accordance with the General Conditions of the contract.

  3.2 The policy shall provide that the proceeds thereof are payable to the Band Council.

  3.3 The Contractor shall do such things and execute such documents as are necessary to effect payment of the proceeds.

• BR 4 Amount of Insurance

  The amount of insurance shall not be less than the sum of the contract value plus the declared value (if any) set forth in the contract documents of all material and equipment supplied by the Band Council at the site of the project to be incorporated into and form part of the finished Work.

• BR 5 Deductible

  The policy shall be issued with a deductible amount of not more than $2,500.

• BR 6 Subrogation

  The following Clause shall be included in the policy:

  "All rights of subrogation or transfer of rights are hereby waived against any corporation, firm, individual or other interest, with respect to which, insurance is provided by this policy".

• BR 7 Exclusion Qualifications

  The policy may be subject to the standard exclusions but the following qualifications shall apply:

  7.1 Faulty materials, workmanship or design may be excluded only to the extent of the cost of making good thereof and shall not apply to loss or damage resulting therefrom.

  7.2 Loss or damage caused by contamination by radioactive material may be excluded except for loss or damage resulting from commercial isotopes used for industrial measurement, inspection, quality control radiographic or photographic use.

  7.3 Use and occupancy of the project or any part or section thereof shall be permitted where such use and occupancy is for the purposes for which the project is intended upon completion.

1. List of Tender

1. Instructions to Bidders
2. Tender Form
3. Contract Documents
   1. Articles of Agreement
   2. Plans and Specifications "A"
   3. Terms of Payment "B"
   4. General Conditions "C"
   5. Labour Conditions "D"
   6. Insurance Conditions "E"
   7. Contract Security Conditions "F"
   8. Local Content Conditions "G"
4. Any Addenda issued before the date set for tender closing.
5. Contractor's Qualification Statement

2. Completion of Tender

1. The tender shall
   1. be submitted on the tender form provided, no substitutes will be accepted;
   2. be based on the tender documents listed above;
   3. be signed in accordance with the signing procedures set out herein;
   4. be accompanied by the bid security specified herein;
   5. be correctly completed in all respects;
   6. be enclosed and sealed in the envelope provided and the name and address of the Tenderer shall be typed or printed on the tender envelope.
2. Any alteration to the pre-printed or pre-typed sections of the tender form may render the tender liable to disqualification. Alterations, corrections, changes or erasures made to statements or figures entered on the tender form by the Tenderer shall be initialled by the person or persons signing the tender.
3. Signing Procedures: The tender shall be signed in accordance with the following requirements:
   1. Corporation - The signatures of the authorized signatories shall be affixed and their names and titles typed or printed in the space provided and the corporate seal should be affixed. If the corporate seal is not affixed to the tender, the signatures shall be witnessed and proof of signing authority shall be provided. In the Province of Quebec signatures must be witnessed and, except when a director signs the tender, proof of signing authority shall be provided whether or not a corporate seal is affixed.
   2. Partnership - The signatures of the partners shall be affixed and their names typed or printed in the space provided. The signatures shall be witnessed, and if not all of the partners sign or if the signatory is not a partner then a certified true copy of the agreement signed by all partners authorizing such person or persons to execute the An adhesive coloured seal shall be affixed next to each signature except Tender in the province of Quebec.
   3. Sole Proprietorship - The signature of the sole proprietor shall be affixed and the name typed or printed in the space provided. The signature shall be witnessed. In the event that the signatory is not the sole proprietor then a certified true copy of the agreement signed by the sole proprietor authorizing such person or persons to execute the document shall accompany the tender.
      
      An adhesive coloured seal shall be affixed next to each signature except in the province of Quebec.
   4. Joint Venture - The signatures of the authorized signatories of each member of the joint venture shall be affixed and their names and titles typed or printed in the space provided. Each of the participating signatories shall sign the document in the manner applicable to their particular business arrangement which is more particularly described in Clauses 2.3.1 to 2.3.3 above.

3. Submission of Tender

1. Tenders shall be received at the office designated for the receipt of Tender tenders, on or before the date and time set for tender closing. Late tenders will be returned unopened.

4. Revision of Tender

1. A tender submitted in accordance with these instructions may be revised Tenders by letter, telegram or facsimile provided the revision is received at the office designated for the receipt of tenders, on or before the date and time set for the closing of tender. The facsimile must be on the contractor's letterhead or bear a signature that identifies the contractor. A revision to a unit price tender must clearly identify the change(s) in the unit price(s) and the specfic item(s) to which each change applies.

5. Approval of Alternative Materials

1. Whenever materials are specified by trade names or by manufacturer's Alternative names, the tender shall be based on the use of the named materials. Materials During the tendering period, alternative materials will be considered provided full technical data is received in writing at the address given in clause 8 of these Instructions to Bidders at least ten (10) days prior to the date set for the closing of the tender. If the alternative materials are approved for the purposes of the tender an addendum to the contract documents will be issued.

6. Listing of Sub-Contractors and Suppliers

1. The lowest acceptable Tenderer shall, within 48 hours of receipt Contractors and of a notice in writing, submit the names of subcontractors and Suppliers suppliers for the part or parts of the work listed in the said notice.

7. Acceptance of Tender

1. The lowest or any tender may not necessarily be accepted. Any or all Tender tenders may be rejected.
2. Without limiting the generality of Clause 7.1, the Band Council may reject any tender, based on an unfavourable assessment as to
   1. the adequacy of the tendered price to carry out the work and, in the case of a tender providing unit prices, whether the unit prices reasonably reflect the cost of performing the work related to those prices;
   2. whether the Bidder has the necessary management structure, skilled personnel, experience and equipment to perform competently the work under the contract; and
   3. the Bidder's performance on other contracts.
   4. specified mandatory requirements including local content conditions must be met
3. In assessing the Bidder's performance on other contracts pursuant to clause 7.2.3, the Band Council may consider, but not be limited to, such matters as
   1. the efficiency and workmanship of the Bidder in performing the work; and
   2. the extent to which the Bidder executed the work in accordance with terms and conditions of the contract.

8. Tender Enquiries

1. All enquiries submitted prior to the date and time set for tender closing shall be addressed to:

   Name Title Phone No. Fax No. E mail

   ___________________________________________________

   ___________________________________________________

9. Bid Security Requirements

1. The Bidder shall submit a bid security of 10% of the tender amount with its tender in the form of a bid bond or a security deposit. The maximum amount of bid security with any tender is $250,000.00.
2. A bid bond shall be in an approved form and issued by an approved company whose bonds are acceptable to the Band Council.
3. A security deposit shall be either
   1. a certified cheque, bank draft, money order, etc.,
      1. payable to the Band Council, and certified by or drawn on a recognized banking institution
4. bonds of the Government of Canada or bonds unconditionally Requirements guaranteed as to principal and interest by the Government of (continued) Canada that are
   1. payable to bearer, or
   2. accompanied by a duly executed instrument of transfer of the bonds to the Band Council in the form prescribed by the Domestic Bonds of Canada Regulations, or
   3. registered as to principal or as to principal and interest in the name of the Band Council pursuant to the Domestic Bonds of Canada Regulations, and
   4. provided on the basis of their market value current at the date of the contract.
5. a letter of credit drawn on a recognized banking institution.

10. Contract Security Requirements

1. The successful Bidder shall be required to provide contract security Requirements in accordance with the Contract Security Conditions "F" of the Tender Documents listed above within fourteen (14) days after receipt of a notice in writing that the tender was accepted by the Band Council.

11. Contractor's Qualifications Statement

1. The "Contractor's Qualification Statement" must be completed by the Qualifications lowest acceptable bidder and submitted to the Band Council within Statement 24 hours of being called upon to do so by the Band Council.

12. Local Content

1. Bidders are to note that there are special requirements included in the Tender form and Contract documents in connection with Local Labour, Equipment, Material and Training.
   1. a list of local trades people and contractors available at the work site is attached to these instructions. It is the responsibility of the contractor to establish their qualifications and to make the necessary arrangement for their employment.
   2. a list of available local construction material is also attached to these instructions. It is the responsibility of the contractor to make his/her own arrangements for the purchase of the materials which must meet the requirements of the specifications.
   3. a list of available local construction equipment is also attached to these instructions. The contractor is responsible for making his/her own arrangements for the examination and local rental of the required equipment.
   4. a list of local trades people available at the work site is attached to these instructions. It is the responsibility of the contractor to establish their requirements and to make the necessary arrangements for a training program for them.

Tender Form Major Construction Works Combined Price

Articles of Agreement

These Articles of Agreement made in duplicate this day of 20

Between

The Band Council of the ____________________ Band (referred to in the contract documents as the Band Council).

AND

(referred to in the contract documents as the "Contractor")

Witness that in consideration for the mutual promises and obligations contained in the contract, the Band Council and the Contractor covenant and agree as follows:

IN WITNESS WHEREOF the parties hereto have executed this contract as of the day and year first above written.

________________________________________________________________________________________

FOR LIMITED COMPANY OR INCORPORATED COMPANY SEALED, ATTESTED TO AND DELIVERED on behalf of the Contractor by

FOR PARTNERSHIP OR SOLE PROPRIETORSHIP SEALED, ATTESTED TO AND DELIVERED on behalf of the Contractor by

EXECUTED ON BEHALF OF THE BAND COUNCIL BY

Plans and Specifications - A

Project Manager (attach Plans and Specifications)

Terms of Payment - B

General Conditions - C

Section/Page Heading

• GC1 Interpretation
• GC2 Successors and Assigns
• GC3 Assignment of Contract
• GC4 Subcontracting by Contractor
• GC5 Amendments
• GC6 No Implied Obligations
• GC7 Time of Essence
• GC8 Indemnification by Contractor
• GC9 Indemnification by the Band Council
• GC10 Members of the Band Council Not to Benefit
• GC11 Notices
• GC12 Material, Plant and Real Property Supplied by the Band Council
• GC13 Material, Plant and Real Property Become Property of the Band Council
• GC14 Permits Licences and Certificates
• GC15 Performance of Work under Direction of Engineer
• GC16 Cooperation with Other Contractors
• GC17 Examination of Work
• GC18 Clearing of Site
• GC19 Contractor's Superintendent
• GC20 Security of the Band
• GC21 Unsuitable Workers
• GC22 Increased or Decreased Costs
• GC23 Local Labour, Material, Equipment and Training
• GC24 Protection of Work and Documents
• GC25 Public Ceremonies and Signs
• GC26 Precautions against Damage, Infringement of Rights, Fire and Other Hazards
• GC27 Insurance
• GC28 Insurance Proceeds
• GC29 Contract Security
• GC30 Changes in the Work
• GC31 Interpretation of Contract by Engineer
• GC32 Warranty and Rectification of Defects in Work
• GC33 Non-Compliance by Contractor
• GC34 Protesting Engineer's Decision
• GC35 Changes in Soil Conditions and Neglect or Delay by the Band Council
• GC36 Extension of Time
• GC37 Assessments and Damages for Late Completion
• GC38 Taking the Work Out of the Contractor's Hands
• GC39 Effect of Taking the Work Out of the Contractor's Hands
• GC40 Suspension of Work by the Band Council
• GC41 Termination of Contract
• GC42 Claims against and Obligations of the Contractor or Subcontractor
• GC43 Security Deposit - Forfeiture or Return
• GC44 Engineer's Certificate
• GC45 Return of Security Deposit
• GC46 Clarification of Terms in GC47 to GC50
• GC47 Additions or Amendments to Unit Price Table
• GC48 Determination of Cost - Unit Price Table
• GC49 Determination of Cost - Negotiation
• GC50 Determination of Cost - Failing Negotiation
• GC51 Records to be Kept by Contractor
• GC52 Contractor's Status

Labour Conditions - D

Project Manager to attach Provincial/Territorial Labour Conditions

Major Construction Works Insurance Conditions "E"

Contract Security Conditions - F

Local Content Conditions - G

Contractor's Qualification Statement (Building Construction)

(Required from the lowest bidder in advance of award of contract to establish whether a contractor possesses the capacity, skill and integrity necessary to the faithful performance of the work).

Submitted to the Band Council of the _______________________ Band

By _____________________________ A Corporation____________________

Address _____________________________ A Partnership ____________________

An Individual______________________________________________________

If a Corporation, answer below:

Year incorporated _______________________________

Federal _______________________________________ or

Provincial (which Province) ________________________

or Year registered _______________________________

(which Province) _______________________________

President's name _______________________________

Name(s) of Vice-President(s):

_______________________________

_______________________________

_______________________________

If a Partnership, answer below:

Date of organization ________________________

Names and addresses of all partners:

_______________________________________

_______________________________________

_______________________________________

How many years has the organization been in business as a contractor in Canada ?

___________________________________________________________________________________

Approximate total Canada volume of construction work for the last five years ?

_______ 19 _______ , _______ 19 _______ , _______ 20 _______,

_______ 20 _______ , _______ 20 _______,

List Below the Related Construction Experience of the Principal Individuals in the Contractor's Organization:

Individual's Name and Professional Qualifications

__________________________________________

Present Position/Office

__________________________________________

Years of Construction Experience

__________________________________________

In What Capacity

__________________________________________

List Major Projects Your Organization has Completed in Canada in the Past Five Years:

Project

__________________________________________

Officer

__________________________________________

Architect/Engineer

__________________________________________

When Engineer

__________________________________________

Contract Amount Completed

__________________________________________

List of the Major Construction Projects Your Organization has Under Way on this Date:

Project

__________________________________________

Owner

__________________________________________

Architect/Engineer

__________________________________________

Value

__________________________________________

% Complete

__________________________________________

Scheduled Completion

__________________________________________

Data on Project Being Bid

REFERENCES:

(a) Banking __________________________________________

(b) Bonding __________________________________________

The answers to the foregoing questions and all statements therein contained are true and correct.

Name of Organization : __________________________________________

Authorized Signature: ___________________________________________

Title : _________________________________________________________

This __________day of _________________ 20 _______________

Note : Please use a blank sheet if additional space needed for any replies.

Sample Newspaper Advertisement

Sealed tenders for the projects listed below, addressed to the Band Council of the

_________________________________________________ Band

______________________________________________

______________________________________________ address of Band Council

______________________________________________

will be received until (Time) _______________________ am/pm (Date)___________________________.

Tender documents can be obtained from the Band Council at the above address

Telephone No ________________________________

Fax No ________________________________

Projects

"Interior renovations of the Band office located at (provide short description of work)"_________________________________
_______________________________________________________________________________________________________________________

The lowest or any tender not necessarily accepted.

Sample Letter of Invitation to Tender

Date:_____ /______ /

To: __________________________________ contractor

__________________________________

__________________________________ address

__________________________________

__________________________________

Re: Project No _________________________________

Project Title: _________________________________

You are invited to submit a tender for the referenced work. The tenders will be received until (time) _______________________ am/pm (date)_______________________.

Your tender must be submitted in accordance with the requirements of the attached tender documents.

For additional information in connection with this invitation to tender please contact

___________________________________ (Band Representative).

___________________________________.

___________________________________ (Address of Band Representative).

___________________________________.

____________________________________.

____________________________________.

____________________________________ .

Approval of Contract Award

Band Representative

1. Band representative recommends award to specific bidder and forwards recommendation to the Band Council.

Band Council

2. Reviews recommendation for award and signs award fax or letter.

Band Representative

3. Confirms that site is clear and that contract can proceed.
4. Notes any special conditions attached to award (for example, requirement of security on a contract of $25,000 or less).

Notification of Contract Award

Band Representative

5. If contract is on the contract form for a work order or for minor works, prepares, obtains appropriate signature and sends award letter on award date confirming acceptance of contractor's tender (quotes accepted alternatives, if any) and instructs him/her to proceed with work. If the contract is valued between $25,000 and $100,000 requests contract security from contractor in confirming letter, noting that no payments can be made under the contract until it is provided. Includes all other pertinent information and instructions. If urgent, the contract award may be made by fax or electronic mail, but must be confirmed by letter.
6. If the contract is on the contract form for major works i.e. greater than $100,000, prepares award fax or letter for the signature of the Band Council. Sends award letter on award date confirming acceptance of contractor's tender (quotes accepted alternatives, if any) and instructs her/ him to proceed with work. Requests contract security and insurance from contractor in confirming letter, noting that no payments can be made until they are provided. Includes all other pertinent information and instructions. If urgent, the contract award may be made by fax and must be confirmed by letter.
7. Advises appropriate officers of contract award. Files copies of award letter, contractor's tender and any pertinent correspondence.
8. Informs the provincial workers' compensation board of contract award and name of contractor's bonding company, if applicable. Reports these details to Health and Welfare Canada only when work camps are required as part of the construction contract.

Insurance and Contract Security

Band Representative

9. Upon receipt of insurance certificate checks for correctness of form, amount of coverage and term. If not correct, returns to contractor for correction. Upon receipt of correct insurance, files with contract documents.
10. Upon receipt of surety bonds, checks to see that they are in proper form, in the correct amount and from a bonding company whose bonds are acceptable. If any deficiencies, returns to contractor for correction. When correct bonds received, files with contract documents.
11. If security is government guaranteed bonds, checks that amount of bonds is adequate and that coupons are attached, and retains in a secure place.
12. If security is a certified cheque, letter of credit etc., checks to see that the amount is correct.
13. Deposits certified cheque to band account unless cheque is to be held uncashed at request of contractor.
14. If the contractor asks to exchange the security deposit provided with his/her tender for an alternative type of acceptable security, the Band Council can permit this to be done.

Preparation and Signing of Contract Documents for Work Order Contract Less Than $25,000

Band Representative

15. Obtains the signature of the Band Council.
16. Forwards one copy of signed work order to contractor.

Preparation and Siging of Contract Documents for Minor Works i.e. Between $25,000 and $100,000

Band Representative

17. Checks contract (Tender and Acceptance) signed by contractor. When contract security and insurance requirements have been met, obtains the signature of the Band Council.
18. Forwards one copy of signed contract to contractor.

Preparation and Signing of the Contract Documents for Major Works i.e. Greater than $100,000

Band Representative

19. Prepares contract documents, assigns contract number and forwards two sets of contract documents to contractor for signature. Requests contract security and insurance if not yet received.
20. Upon receipt of the signed contract documents, checks to see that they are properly signed.
21. When contract insurance and contract security requirements have been met, obtains the signature of the Band Council.
22. Forwards one set of signed contract documents to the contractor.

1. Standard Major Works Construction Contract (i.e. Greater than $100,000)

• 1.1 Limited Company:
  • 1.1.1 The full name of the company and the name(s) and titles of the authorized signing officer(s) must be printed in the space provided for that purpose.
  • 1.1.2 The authorized signing officers of the company must sign the contract in the appropriate space. If the contract documents are signed by officials other than the president and secretary of the company or the president and secretary-treasurer of the company, a copy of a by-law or resolution of the board of directors authorizing them to do so must be obtained.
  • 1.1.3 The corporate seal of the company must be affixed to the contract in the appropriate space. *
• 1.2 Partnership:
  • 1.2.1 The name of the firm and the name(s) of the person(s) signing must be printed in the space provided for that purpose.
  • 1.2.2 The word "partner" must be inserted under title(s) against each signature.
  • 1.2.3 All partners must sign the contract in the appropriate space and in the presence of a witness who must also sign.
• 1.3 Sole Proprietorship:
  • 1.3.1 The business name and the name of the sole proprietor must be printed in the space provided for that purpose.
  • 1.3.2 The words "Sole Proprietor" must be inserted under the title.
  • 1.3.3 The sole proprietor must sign the contract in the appropriate

* The seal concept does not apply in the Province of Quebec. Therefore, seals are not required for contracts in that province.

APPROVAL OF CONTRACT AWARD

Band Representative

1. Band representative recommends award to specific bidder and forwards recommendation to the Band Council.

Band Council

2. Reviews recommendation for award and signs award fax or letter.

Band Representative

3. Confirms that site is clear and that contract can proceed.
4. Notes any special conditions attached to award (for example, requirement of security on a contract of $25,000 or less).

NOTIFICATION OF CONTRACT AWARD

Band Representative

If contract is on the contract form for a work order or for minor works, prepares, obtains appropriate signature and sends award letter on award date confirming acceptance of contractor's tender (quotes accepted alternatives, if any) and instructs him/her to proceed with work. If the contract is valued between $25,000 and $100,000 requests contract security from contractor in confirming letter, noting that no payments can be made under the contract until it is provided. Includes all other pertinent information and instructions. If urgent, the contract award may be made by fax or electronic mail, but must be confirmed by letter.

5. If the contract is on the contract form for major works i.e. greater than $100,000, prepares award fax or letter for the signature of the Band Council. Sends award letter on award date confirming acceptance of contractor's tender (quotes accepted alternatives, if any) and instructs her/ him to proceed with work. Requests contract security and insurance from contractor in confirming letter, noting that no payments can be made until they are provided. Includes all other pertinent information and instructions. If urgent, the contract award may be made by fax and must be confirmed by letter.
6. Advises appropriate officers of contract award. Files copies of award letter, contractor's tender and any pertinent correspondence.

INSURANCE AND CONTRACT SECURITY

Band Representative

9. Upon receipt of insurance certificate checks for correctness of form, amount of coverage and term. If not correct, returns to contractor for corrections. Upon receipt of correct insurance, files with contract documents.
10. Upon receipt of surety bonds, checks to see that they are in proper form, in the correct amount and from a bonding company whose bonds are acceptable. If any deficiencies, returns to contractor for correction. When correct bonds received, files with contract documents.
11. If security is government guaranteed bonds, checks that amount of bonds is adequate and that coupons are attached, and retains in a secure place.
12. If security is a certified cheque, letter of credit etc., checks to see that the amount is correct. Deposits certified cheque to band account unless cheque is to be held uncashed at request of contractor.
13. Deposits certified cheque to band account unless cheque is to be held uncashed at request of contractor.

PREPARATION AND SIGNING OF CONTRACT DOCUMENTS FOR WORK ORDER CONTRACT LESS THAN $25,000

Band Representative

15. Obtains the signature of the Band Council.
16. Forwards one copy of signed work order to contractor.

PREPARATION AND SIGNING OF CONTRACT DOCUMENTS FOR MINOR WORKS i.e. between $25,000 and $100,000

Band Representative

17. Checks contract (Tender and Acceptance) signed by contractor. When contract security and insurance requirements have been met, obtains the signature of the Band Council.
18. Forwards one copy of signed contract to contractor.

Forwards one copy of signed contract to contractor.

Band Representative

19. Prepares contract documents, assigns contract number and forwards two sets of contract documents to contractor for signature. Requests contract security and insurance if not yet received.
20. Upon receipt of the signed contract documents, have been met, obtains the signature of the Band Council.
21. When contract insurance and contract security requirements have been met, obtains the signature of the Band Council.
22. Forwards one set of signed contract documents to the contractor.

5.5.1

The changes most frequently encountered in construction contracts are the following:

1. the actual ground conditions (subsoil or water table) differ substantially from those described in the tendering documents;
2. some additional work or change in the work is required of the contractor; or
3. the estimated quantities of work specified in the contract documents are more than 115% or less than 85% of the actual work performed. An amendment must be considered.

Generally, construction contracts provide a mechanism for adjusting the contract price in the event a change is ordered. Routine changes are frequent and, with rare exceptions, are resolved without difficulty. These are normally dealt with by change orders. Sometimes the changes are so fundamental that the scope of the work is radically altered and the contractor is really being asked to build something different from what is described in the contract.

5.5.2

A completion date is specified for all construction contracts. Before the commencement of the work, the contractor must submit a detailed schedule of construction for the different parts of the work. This schedule can be adjusted for any changes that occur during construction. Any change to the schedule is subject to approval by the project manager, in consultation with the band's technical expert. Delays whether caused by the band or the contractor, may prevent performance of the contract on schedule, and may therefore increase the costs incurred by the contractor.

5.5.3

If the delays are caused by poor performance by the contractor, he/she must bear the increase in costs and the project manager has every right to demand that the performance of the work be accelerated, by increasing either the personnel or the equipment on the site, or by double-shifting. In this case, no claim can be considered by the project manager in relation to the increased costs incurred by the contractor.

5.5.4

Acceleration can be demanded by the project manager when the contractor lags behind the approved schedule. If the project manager asks the contractor to accelerate the performance of the work so that the Band Council can take possession of the structure sooner than described in the approved schedule, the contractor must be compensated for any additional costs.

5.5.5

If the delays are caused by the Band through failure to perform some specific obligation (unimpeded access to the site, supply of materials, drawings, etc.), the Band Council can expect a claim from the contractor.

5.5.6

If a party to a contract fails to live up to its legal obligations, that party is in default. The Band Council may be in default for the reasons described below.

5.5.7

Incomplete or inaccurate information concerning ground conditions (subsoil or water table) may have been given to the contractor in the tendering documents. The contractor is then entitled to a reimbursement for any additional cost incurred because of the actual soil conditions encountered during construction.

5.5.8

The contractor is entitled to carry out the work without interference by the Band Council. Hence, in, the absence of a contractual provision to the contrary, the project manager cannot dictate the manner or order in which works are to be carried out.

5.5.9

If the band project manager delays the performance of the work, the contractor is not obliged to follow the time schedule and cannot be penalized for late completion.

5.5.10

In the absence of any provision to the contrary, it is implied that the Band Council will make the site available within a reasonable time of signing the contract. The contractor is normally entitled to exclusive use of the entire site.

5.5.11

If the project manager fails to issue detailed drawings at the proper time and thus delays the contractor, he/she will commit a default for which the Band Council may be liable for extra costs to the contractor.

5.5.12

Whenever extra costs are incurred by Band Council on a project due to lack of performance by the contractor in terms of time or quality, the question of assessing those costs against the contractor must be considered.

5.5.13

Following are the most frequent causes of default by the contractor, with references to the relevant contract clauses:

1. Damage to material, plant and real property supplied by the Band Council:
   
   Under section 12 of the General Conditions "Materials, Plant and Real Property supplied by the Band Council".
2. Late completion:
   
   In the case of late completion as defined in General Condition 37, the actual costs incurred by the Band Council, due to the delayed completion, may be assessed against the contractor. For example, late completion of a school could force the Band Council to rent other facilities for the start of a school year; the cost of such rental should be assessed against the contractor.
3. Failure to meet specified requirements:
   
   There may be occasions when the Band Council is forced to accept a lower quality product than called for in the contract. This may apply to materials or equipment. In such cases, an assessment should be made to compensate the Band Council for the failure of the contractor to meet the required standards set by the specifications.

5.5.14

Assessments must be properly prepared. Each one must be considered on its own merit and in some cases it may be advisable to obtain legal advice. Three main points require consideration:

1. The Band Council has the right to make the assessment under the terms of the contract.
2. The items included in the assessment must be identifiable and the amounts must be substantiated.
3. In all cases the band should notify the contractor in writing of its intent to make the assessment.

5.5.15

Other assessments that do not imply default can be made against the contractor:

1. Soil conditions:

   Under GC 35 "Changes in Soil Conditions and Neglect or Delay by the Band Council" the contractor has the right to claim for extra costs incurred if soil conditions are substantially different from those which could reasonably be expected. The Band Council also has the right to a reduction in the contract amount if the different conditions result in savings.

2. Unit prices:

   The contract provides for amending unit prices. It should not be overlooked that unit prices may be negotiated downward as well as upward; this applies to increased or decreased quantities.

5.6.1

As previously stated, the Band Council's policy should be to review and resolve contract disputes in an expeditious and equitable manner. The following procedures should assist project managers in a rapid resolution of disputes.

5.6.2

Immediate attention must be given to disputes that arise out of contracts. They should be resolved, if at all possible, by negotiations between the project manager and the contractor. The Band Council should be kept informed of these negotiations.

5.6.3

Legal council should be obtained to assist in the resolution of claims and in the interpretation or application of various sections of the contract documents as they relate to disputes.

5.6.4

On all projects, the project manager should keep detailed records of the progress of the work, with significant milestones registered. These records are essential in the resolution and quantification of claims.

5.6.5

Job records should include the following:

1. contract documents, including change orders;.
2. minutes of meetings;.
3. clerk of work reports;
4. job diaries;
5. progress photographs;
6. job schedules;
7. consultant's reports related to the claim;
8. correspondence related to the claim; and
9. notices issued and received

Moreover, both the contractor and the project manager should put their communications in writing.

5.6.6

As soon as the contractor submits a claim or states her/his intention to claim information should be assembled from the job records in order to analyse it. A logical and complete presentation must include the following information:

1. name of contractor;
2. project scope and location;
3. contract number and value, with the number and values of change orders;
4. type and amount of contract security;
5. percentage of work completed and amount paid to date;
6. amount of holdback retained to date;
7. value of material on site;
8. date of contractor's written notice of intent to claim;
9. basis of claim;
10. amount of claim
11. history of claim:
    1. date of actual commencement of work;
    2. date of completion of stages of the work, for example, foundations, framework, masonry or roofing that has a particular reference to the stage or stages affected by the claim;
    3. reasons for delay or disruption of work;
    4. a breakdown of the cost incurred by the contractor, directly related to the claim;
    5. a breakdown of the cost incurred by the band, directly related to the claim, for example, consultant fees and inspection charges;
    6. other background information that will assist in assessing the claim; and
    7. a legal opinion.

5.6.7

Claims that arise during the performance of a project are often unforeseeable. In some cases, however, it is possible for the project manager to foresee that a change in the contract is probable, thereby giving rise to a claim by the contractor. The project manager should then keep precise records concerning the potential claim area, in order to facilitate the settlement of the claim.

5.7.1

Under the contract, the Contractor must notify the Engineer of his/her intention to claim or present any protest against the interpretation of the contract by the project manager, in writing within ten days of the date that the event occurred or written notice of interpretation was given. If this time frame is not respected, extra payment shall not be made to the contractor in respect of the occurrence.

5.7.2

Once the written notice of claim has been given by the contractor, the quantities and costs of the labour, plant or material involved in the claim must be verified.

5.7.3

The proposed contract between the Band Council and the contractor lists three possible ways of quantifying changes, namely:

1. by using applicable contract unit prices (GC 48);
2. if the Unit Price Table does not contain an applicable unit price, the detailed cost of the labour, plant or material shall be the amount agreed upon by the contractor and the band project manager (GC 49); or
3. if the parties cannot agree on a lump sum price and no applicable unit prices are part of the contract, by payment pursuant to the actual reasonable costs sustained by the contractor in performing the extra or modified work, plus 10% of the above costs (GC 50).

5.7.4

If the contractor is entitled to additional compensation, he/she is also entitled to be reimbursed for profit and overhead. GC 50 of the General Conditions of the proposed contract between the Band Council and the contractor allows 10% for this item.

5.7.5

If the contractor rents equipment, the pertinent invoices are treated as a supply of material, and the contractor is entitled to 10% for overhead and profit.

5.7.6

If the equipment is owned by the contractor, a reasonable monthly, weekly, daily or hourly rate has to be agreed to between the band and the contractor. Generally, the rental rate includes profit and overhead.

5.7.7

Subcontractor charges are considered as a supply of material and treated accordingly.

5.7.8

It must be remembered that not every claim of a subcontractor is payable by the Band Council. There are situations when the general contractor may be liable to a subcontractor without being able to pass on such a liability to the Band Council.

5.7.9

The extra costs claimed by the contractor must be reasonable, that is, the extra work must be performed efficiently. This principle should be kept in mind, although it is rather difficult to prove inefficiency.

5.7.10

It should be noted that most construction contracts demand that a schedule of the work be submitted for approval and/or correction. This schedule of the work, once approved by the project manger, constitutes the target for the contractor's performance, and any delay by the Band Council may be a basis for a claim from the contractor.

5.7.11

Costs associated with delay and/or acceleration include the following:

1. Direct costs are based on time, and are directly increased by an extended duration. Examples of such direct costs are: site supervision and administration, temporary services, temporary offices and storage facilities, insurance, permits and bonds. The cost is taken directly from the contractor's books.

   Besides the time-oriented non-production cost items mentioned above, there are other costs which may be encountered on a project that has been subject to significant delays. These include the cost of escalation (labour, material and equipment), and the loss of productivity due to changed conditions.

   The costs outlined above are typical general contractor's costs. The same principles apply for the calculation of damages payable to the band when the contractor is responsible for the delay.

   Another direct cost relating to extension of time is loss of head office overhead. It is the practice of most contractors to add a single percentage to their estimate to cover this. During a delay, a contractor continues to incur the expenses of head office overhead without having any construction activity to charge them against. GC 50 provides for this cost.

   Finally the regular business of the contractor is further hampered by having a substantial portion of bonding capacity tied up.

2. The direct costs of extended duration are easily identified, as they are proportional to the delays or disruptions. There are, however, some other losses that may derive from delay or disruption, regarding efficiency and cost of construction. These are called the impact costs.
3. Costs usually incurred for accelerated construction are the following:
   • - increased cost of supervision;
   • - additional equipment rental;
   • - additional materials;
   • - extra moves (formwork, equipment, etc);
   • - additional mobilization (for example, additional accommodation);
   • - overtime premiums;
   • - overstaffing; and
   • - loss of efficiency resulting from overtime work.

5.8.2

It is to the advantage of both the Band Council and the contractor to resolve contract claims as soon as possible and not to allow them to become full-fledged disputes. This is particularly important because prolonged claims can delay performance as well as the payment to the contractor. Further, a prompt settlement can avoid the expenses incurred in the preparation and study of a formal claim. An honest negotiation of claims between the project manager and the contractor is always profitable to both parties.

5.8.3

When a claim has not been resolved by negotiation, the assistance of a third party may be used, if acceptable to both the Band Council and the contractor.

5.8.4

There are three processes available for the resolution of disputes:

1. mediation
2. arbitration
3. litigation

5.8.5

Mediation is a process whereby the mediator uses persuasion to bring about a resolution of the dispute. The mediator does not adjudicate. The mediator selected must be acceptable to both parties to the contract.

5.8.6

Unlike mediation, the awards made by the arbitrator are binding on the parties and will normally be confirmed by the courts. Only in the cases of misconduct of the arbitrator (fraud, bias, impropriety), failure on the part of the arbitrator to observe the rules of natural justice, ambiguity in the award and clear errors of law, will a court review and set aside an award.

5.8.7

Every province has promulgated an Arbitrations Act that gives the procedures to be followed when the arbitration process is used. Reference should be made to the relevant provincial Act before proceeding with the arbitration process.

5.8.8

Litigation, which is going to court, is a very formal means of resolving the difference in respect of a claim. It can be lengthy and expensive and should be used for complex situations or when the dispute concerns a legal interpretation of the contract.

5.8.9

When litigation is to be used, the presence of a lawyer conversant with the construction industry is required and this lawyer sets up the strategy for the court action. It is therefore vital that full confidence can be established with the lawyer and that she/he be made aware of all aspects of the claim.