CIDA 101 - General Conditions (Contracts) - Current Version
Effective April 6, 2011
- A. Definitions
- B. General conditions
- Alternate dispute resolution
- Anti-corruption clause
- Assignment of contract
- Canadian labor, materials—export permits
- Confidential Information—nondisclosure
- Conflict of interest
- Consultant status / employer-employee relationship
- Debts left in the country of assignment
- Evaluation of performance
- Exclusion from other CIDA assignments
- Former public servants and former public office holder
- Goods and services provided by the recipient country
- Government/recipient country property, facilities and electronic media, use of
- Harassment in the workplace
- Health protection
- Improper conduct or abandonment of position
- Initial Visit
- Intellectual property
- Interest on overdue accounts
- International sanctions
- Liability insurance
- Members of the House of Commons of Canada
- Replacement of personnel
- Right of set-off
- Successors and assigns
- Termination due to default of consultant
- Termination or suspension of work
- Time of essence
- Warranty by consultant
A. Definitions (2011-04-06)
Unless they are otherwise defined in the Articles of Agreement and the annexes attached thereto, the following terms mean:
CIDA means the Canadian International Development Agency (ACDI)
Consultant means the person(s) or entities whose name(s) appears on the signature page of the contract and who is to supply services and related goods to CIDA under the contract. (Consultant)
CIDA Representative means an officer or employee of Her Majesty who is designated in the Articles of Agreement to the contract to perform more of the CIDA representative functions under the contract. (Représentant de l'ACDI)
Contract means the written agreement between the Parties, these General Conditions, any supplemental General Conditions specified in the written agreement, and every other document specified or referred to in any of them as forming part of the contract, all as amended by written agreement of the Parties from time to time. (Marché)
Developing countries or countries in transition means developing countries or countries in transition mentioned on CIDA's website. (Pays en développement ou en transition)
Former public office holder means
- a former Minister of the Crown;
- a former parliamentary secretary;
- a former full-time Governor-in-Council appointee, other than a former Lieutenant-Governor of a province and a former judge who received a salary under the Judges Act;
- a former employee of a department at a level of senior manager or above, or the equivalent, for whom Treasury Board represents the government as employer;
- every former member of ministerial exempt staff designated by the responsible minister to be subject to this part;
- a former full-time ministerial appointee designated by the responsible minister to be subject to the Conflict of Interest and Post Employment Code for Public Office;
- every former member of the Canadian Armed Forces at a rank of, or above, colonel, or the equivalent;
- a former commissioned officer of the Royal Canadian Mounted Police; and
- the former incumbents of any other positions designated by Treasury Board.
- (Ancien titulaire d'une charge publique)
Former public servant means any former member of a department as defined in the Financial Administration Act, a former member of the Canadian Armed Forces or a former member of the Royal Canadian Mounted Police. (Ancien fonctionnaire)
Her Majesty or Government of Canada means Her Majesty the Queen in right of Canada. (Sa Majesté ou le Gouvernement du Canada)
Herein, hereby, thereof, hereunder and similar expressions, when used in any section of an agreement or arrangement shall be understood to relate to the contract (or the arrangement) as a whole and not merely to the section in which it appears. (Les expressions ici, par les présentes, celle-ci, en vertu des présentes)
Minister means the person responsible for CIDA and includes the Minister's successors, deputies and any lawfully authorized officer representing the Minister for the purpose of this contract. (Ministre)
Outside Consultant/Sub-consultant means one or more individuals (other than full-time employees), a firm, a for-profit, or not-for-profit organization, or institution, acting alone or in a consortium, joint venture, a partnership (limited or otherwise), who/that enters into a contract with the Consultant to carry out a portion of the work which the Consultant has contracted to carry out. (Consultant externe)
Professional means an individual who has specific in-depth professional/technical expertise in a specific field of work. (Professionnel)
Reasonable Cost means a cost is reasonable if, in nature and amount, it does not exceed that which would be incurred by an ordinary prudent person in the conduct of a competitive business. In determining the reasonableness of a particular cost, consideration shall be given to:
- whether the cost is of a type generally recognized as normal and necessary for the conduct of a Consultant's business or performance of the contract;
- the restraints and requirements by such factors as generally accepted sound business practices, arm's length bargaining, federal, provincial and local laws and regulations, and contract terms;
- the action that prudent business persons would take in the circumstances, considering their responsibilities to the owners of the business, their employees, customers, the Government and the public at large;
- significant deviations from the established practices of the Contractor which may unjustifiably increase the contract costs; and
- the specifications, delivery schedule and quality requirements of the particular contract as they affect costs. (coût raisonnable)
Recipient means the recipient of the developing country, or of the country in transition, designated to the Consultant through CIDA by written communication. (Récipiendaire)
Services unless otherwise expressed in the contract, means everything that is specified in the Terms of Reference to the contract, as having to be delivered or performed by the Consultant to meet its obligations under the contract. (Services)
B. General conditions
Alternate dispute resolution (2003-12-01)
The parties agree to make every reasonable effort, in good faith, to settle amicably all disputes or claims relating to the contract, through face-to-face negotiations between the parties authorized to settle. If the parties do not agree within ten (10) working days, they shall refer the matter to management, who shall pursue discussions to reach a settlement. If no settlement is reached within ten (10) working days, after referring the dispute, or claim, to senior management, the parties agree to have recourse to mediation and to bear the cost equally. The parties agree jointly to choose a mediator. The parties shall take part in the mediation process in good faith for twenty (20) working days (or longer if the dispute is a complex one). (Réglement des différends)
The following changes shall be deemed valid only if effected by means of a written amendment executed by all contracting authorities thereto on a document entitled "Amendment". (Modifications):
- a substantive change in the contract, specifically in the nature or scope of the services or results to be achieved;
- a change to the overall time frame of the contract (generally an extension to the period of validity of the contract);
- a change to the overall value of the contract.
- Any other amendment, addition or deletion to the contract, or a waiver of any of the terms and provisions thereof, shall be deemed valid only if approved and executed by all contracting authorities on a workplan. (Modifications)
Anti-corruption clause (2003-12-01)
No offer, gift or payment, consideration or benefit of any kind, which constitutes an illegal or corrupt practice, has or will be made to anyone, either directly or indirectly, as an inducement or reward for the award or execution of this contract. Any such practice will be grounds for terminating this contract/contribution agreement or taking any other corrective action as required. (Disposition anti-corruption)
Asssignment of contract (2008-01-21)
The contract shall not be assigned, in whole or in part, by the Consultant without the prior written consent of CIDA, and any purported assignment made without that consent is void and of no effect. No assignment of the contract, in whole or in part, shall relieve the Consultant from any obligation under the contract, or impose any liability upon Her Majesty, or the Minister. (Cession du marché)
All costs incurred and advance payments made under this contract may be subject to audit, at the discretion of the Minister, by the Minister's designated audit representatives. Unless the Consultant's services are remunerated according to a fixed-price arrangement, the Consultant shall keep proper accounts and records of the cost of the services and of all expenditures or commitments made by the Consultant, including the invoices, receipts and vouchers, which shall be open to audit and inspection by the authorized representatives of the Minister who may make copies and take extracts therefrom. The Consultant shall afford facilities for audit and inspection and shall furnish the authorized representatives of the Minister with such information as the Minister, may from time to time require with reference to the documents referred to herein. The Consultant agrees to allow for the audit and to provide CIDA's authorized representatives with the facilities, personnel, and any information required for the purposes of the audit, at no costs The Consultant shall not dispose of the documents referred to herein without the written consent of the CIDA Representative, but shall preserve and keep them available for audit and inspection for such period of time as may be specified elsewhere in the contract or, in the absence of such specification, for a period of two (2) years following completion of the work. (Vérification)
Canadian labour, materials—export permits (2003-12-01)
The Consultant shall use Canadian labour and materials in the performance of the services, to the full extent to which they are procurable, unless otherwise approved by the Minister. Where any equipment, goods and materials procured pursuant to the contract, are destined for export from Canada, the Consultant shall be responsible to obtain all permits required. Canadian expatriates resident in the recipient country with all local working papers in order, and citizens of the recipient country, or countries in the sub-region, can be assigned by the Consultant to work under the contract. Other personnel may be assigned if it can be demonstrated that the required experience and qualifications are not available in Canada or the recipient country. (Main-d'oeuvre et matériaux canadiens—Permis d'exportation)
Confidential information—nondisclosure (2003-12-01)
The Consultant agrees that it shall not disclose any confidential or classified information, of which it may take cognizance in the performance of the services under this contract, except with the prior written approval of the CIDA Representative. During the period of service, the Consultant shall refrain from any action which might be prejudicial to the friendly relations between Canada and the host country, and shall not participate directly, or indirectly, in any political activity whatsoever in the host country. The Consultant shall ensure that its personnel, contractors or outside Consultants are also bound by these provisions. (Renseignements confidentiels)
Conflict of interest (2011-04-06)
Given the nature of the work to be performed under this Contract and in order to avoid any conflict of interest or appearance of conflict of interest, the Consultant acknowledges that it will not be eligible to bid, either as a Consultant or as a subconsultant (including as an individual resource) or to assist any third party in bidding on any requirement relating to the work performed by the Consultant under this Contract. CIDA may reject any future bid for which the Consultant would be the bidder or may be otherwise involved in the bid, either as a subconsultant or, as an individual resource, or as someone (either itself or its employees) who may advised or otherwise provided assistance to the bidder. (Conflits d'intérêts)
Consultant status / employer-employee relationship (2003-12-01)
This is a contract for the performance of a service and the Consultant is engaged under the contract as an independent contractor for the sole purpose of providing a service. Neither the Consultant nor any of the Consultant's personnel are engaged by the contract as employees, servants, partners or agents of Her Majesty. The Consultant agrees to be solely responsible for any and all payments and/or deductions required to be made, including those required for Canada or Quebec Pension Plans, Unemployment Insurance, Worker's Compensation or Income Tax. (Statut du consultant/ Relations employeur-employé)
Debts left in the country of assignment (2003-12-01)
If the Consultant, a member of its personnel and/or an outside consultant leave the country of assignment without discharging a debt legally contracted there, the Minister may, after giving written notice to the Consultant and conferring with the Consultant in this matter, apply any moneys payable to the Consultant under the contract toward the liquidation of the debt in question. (Dettes laissées dans le pays d'affectation)
Evaluation of performance (2003-12-01)
The Minister reserves the right to evaluate the performance of the Consultant during the term of the contract and/or upon completion of the services. (Évaluation du rendement)
Exclusion from other CIDA assignments (2003-12-01)
Where the Consultant is retained under this contract to carry out the conceptualization, feasibility study, specifications or design of a first or only phase of a project financed by CIDA, the Consultant agrees not to compete for the execution of this same project.
Where a Consultant is retained under this contract to implement a project financed by CIDA, that Consultant agrees not to compete for the monitoring, evaluation or auditing of the same project. (Exclusion d'autres tâches de l'ACDI)
Former Public Servant and Former Public Office Holder (2011-04-06)
A former public servant and a former public office holder must have completed a Declaration Concerning Former Public Servant Status (PDF 225.48 MB) prior to entering into any contract with CIDA. The former public servant or the former public office holder is affected by this provision in his/her capacity as:
- an individual;
- an individual who has incorporated;
- a partner in a partnership made up of former public servants; or
- a sole proprietorship or entity where the affected individual has a controlling or major interest in the entity (Ancien fonctionnaire et ancien titulaire de charge publique)
Goods and services provided by the recipient country (2003-12-01)
The Minister will inform the Consultant what goods and services are to be provided by the recipient country and the Consultant will inform the Minister, as soon as possible, if the recipient government does not make available the goods and services which this government is bound to provide under the agreement signed with the Government of Canada in connection with the project. The Minister and the Consultant shall then consider what measures to take in order to remedy the situation. (Biens et services fournis par le pays bénéficiaire)
Government/recipient country property, facilities and electronic media, use of (2003-12-01)
The Consultant shall not use any of the goods, materials, equipment, facilities, furnishings or vehicles of the Government of Canada, or the Recipient Country, including photocopiers, typewriters, computers and word processors for carrying out any part of the work, mandate or functions described in the present contract, unless previously agreed to in writing by CIDA's representative. If use is authorized, the Consultant agrees to return these items and to reimburse the Government of Canada, or the Recipient Country for missing or damaged items. When authorized to use the Government of Canada electronic media, it is strictly for approved contract activities. The Consultant shall respect CIDA's Electronic Media Usage Guidelines. The Minister reserves the right to impose sanctions, including contract termination, for any improper use of electronic media. (Biens du Gouvernement et du pays bénéficiaire/Utilisation des installations et des médias électroniques)
Harassment in the workplace (2003-12-01)
The Consultant shall respect and ensure that all members of its personnel and/or its outside consultants respect, in relation to persons working for CIDA, CIDA's Policy on Harassment in the Workplace when carrying out any part of the work, mandate or functions described in the contract. (Harcèlement en milieu de travail)
Health protection (2003-12-01)
The Consultant shall ensure that members of its personnel and/or outside consultants assigned abroad are provided with full information on health maintenance in the country of assignment, prior to their departure from Canada, and that they are physically capable of performing the assigned duties in that country. (Subject to approval, CIDA makes available, through the Intercultural Training Centre, pre-departure information sessions, including health matters and foreign-language training; in-country briefing sessions are available to Canadian Consultants and Recipient-country trainees; and post-visit debriefing sessions). The Consultant shall ensure that members of its personnel and/or those of outside consultants assigned abroad are covered by adequate health insurance. Evidence of said coverage shall be made available at any time to CIDA upon request. The Government of Canada shall not assume any costs associated with the repatriation of personnel for medical reasons. (Protection de la santé)
Improper conduct or abandonment of position (2003-12-01)
The Consultant shall inform all members of its personnel and outside consultants assigned to the project that any instances of improper conduct, gross negligence or abandonment of a position before completion of the work shall constitute sufficient grounds for immediate dismissal. In such an event, payment of fees and all other payments shall cease as of the date of this dismissal, and no payments shall be made by the Government of Canada for homeward travel or removal expenses unless otherwise agreed to in writing by the CIDA Representative. Improper conduct shall be deemed to include direct or indirect participation by the Consultant, Consultant's personnel or outside consultants in any political activity in the country of assignment or in any professional or business undertaking or activity that could lead to a conflict of interest. (Mauvaise conduite ou abandon du poste)
The Consultant shall indemnify and save harmless Her Majesty, the Minister, CIDA and their representatives from and against all damages, claims, losses, costs, expenses, actions and other proceedings, made, sustained, brought, prosecuted or threatened to be brought or prosecuted, that are in any manner based upon, occasioned by, or attributable to any injury to, or death of, a person or damage to, or loss of, property arising from any wilful or negligent act, omission or delay on the part of the Consultant, its servants or its agents in the actual or presumed performance of their work under the contract. The Consultant shall indemnify Her Majesty, the Minister, CIDA and their representatives from all costs, charges and expenses whatsoever that they sustain or incur in, or about, all claims, actions, suits and proceedings for the use of the invention claimed in a patent, or infringement, or alleged infringement, of any patent or any registered industrial design, or any copyright, or intellectual property resulting from the performance of the Consultant's obligations under the contract, and in respect of the use of, or disposal by, the Minister of anything furnished pursuant to a contract. The Consultant's liability to indemnify or reimburse Her Majesty under the terms of the contract shall not affect or prejudice Her Majesty from exercising any other rights under the law. (Indemnisation)
Initial Visit (2011-04-06)
To improve project implementation CIDA may conduct an initial visit after the signature of the contract. The objective of the initial visit is to review the terms and conditions of the contract with the Consultant, and to ensure that the Consultant's financial management of the project can be done efficiently and in accordance with the requirements of the contract. The Consultant agrees to allow for the initial visit and to provide CIDA's authorized representatives with the facilities, personnel, and any information required for the purposes of the initial visit, at no cost. (Visite initiale)
Intellectual property (2011-04-06)
(Ownership of Intellectual and Other Property Including Copyright)
1. The following definitions apply to this clause
- "applicable national law" means, notwithstanding the law applicable to the contract, the law of a country which is applicable to the work for which is done, in that country, any act reserved to the owner by this law, such as, in Canada, the Copyright Act.
- "intellectual property rights" or "rights" means, for the work, all or any of the acts reserved to the owner by the applicable law in the country where the licence or assignment of rights is exploited under the contract, or the acts that the parties to the contract recognize as being reserved to the owner, especially by reference to the applicable law in Canada if there is no applicable law in a country or if this law is silent regarding an act.
- "owner of intellectual property rights" or "owner" means any holder of intellectual property rights in a work as defined by the applicable national law or by the parties to the contract, especially by reference to the applicable law in Canada, if there is no national law or if this law is silent regarding a definition thereof, including the creator of the work, the creator's employer if the creator's employer owns rights under the applicable national law or under an agreement with the employee, coholders of rights in the work produced by the collaboration of two or more co-creators whose respective contributions cannot be distinguished, or the assignee or coassignees of rights in the work.
- "work" means, in any form or medium, the original expression of any literary, artistic, or scientific production, or the original expression of any literary, artistic, dramatic or musical production, but not the idea itself expressed by the work, the original expression resulting from the selection or arrangement of works or of parts thereof, or of data, in the case of a compilation, the original expression produced by the collaboration of two or more creators whose respective contributions cannot be distinguished in the case of a work of joint authorship, or the original expression written in distinct parts by different authors, or which incorporates works or parts thereof by different authors, in the case of a collective work, whether or not protected under an applicable national law. Work does not include computer programs, software and related software documentation.
- Her Majesty to own Intellectual Property Rights in the work created under the contract
- In consideration of the price of its services under the contract, all intellectual property rights in each draft and version of any work created under the contract shall immediately, as soon as it comes into existence, be vested in and remain the property of Her Majesty.
- The Consultant shall incorporate the copyright symbol and either of the following copyright notices, as appropriate, into the original copy and each draft and version of any work delivered to CIDA that is subject to copyright, regardless of the form in or medium upon which it is recorded: "© Her Majesty the Queen in right of Canada, Canadian International Development Agency (CIDA) (year)" or "© Sa Majesté La Reine du Chef du Canada, Agence canadienne de développement international (ACDI) (année)".
- Undertakings From the Employed Creators
Before any work is created under the contract, the Consultant shall transfer in writing to any creator employed by the Consultant and to any Contractor and employee employed by Contractor in any contractual network of the Consultant, the obligations stipulated in section 2 (a) allowing the Consultant not to be in default to Her Majesty.
- Transfer of Obligations to Any Contractual Network of the Consultant
Before the creation of any work in any contractual network of the Consultant, the Consultant shall transfer in writing, to each of its Contractors, the obligations stipulated in these terms and conditions, allowing the Consultant not to be in default to Her Majesty. Without limiting the generality of the above, the Consultant must ensure that each of its Contractor is bound by conditions that permit the Consultant to fulfill its obligations pursuant to section 2 (a) and that are compatible with and not less favourable to Canada than the conditions of section 2 (a).
- Licence for Components and Complements Created Outside the Contract
For any work created outside the Contract that is included as a component of, or associated as a complement with, the work created under the Contract, the Consultant shall grant Her Majesty, in consideration of the price of its services and no later than the date of CIDA's final or last payment under the Contract, a worldwide, perpetual, irrevocable, non-exclusive non-commercial, free of charge and royalty-free licence, authorizing Her Majesty:
For any work created outside the Contract that is included as a component of, or associated as a complement with, the work created under the Contract, the Consultant shall grant Her Majesty, in consideration of the price of its services and no later than the date of delivery to CIDA of the work in which or with which the component or complement is included or associated, a worldwide, perpetual, irrevocable, non-exclusive non-commercial, free of charge and royalty-free licence, authorizing Her Majesty:
- to do, directly or through a Third Party, the acts reserved to the owner by the applicable national law or, if there is no law in a country where the licence is exploited or if this law is silent regarding an act, the acts reserved to the owner by the applicable copyright law in Canada, including first publication of the work if it has not yet been published, its reproduction upon any medium, its performance in public, its presentation at a public exhibition in the case of an artistic work, its adaptation, including in translation or in digest form, and its telecommunication to the public on Her Majesty's websites (including CIDA's website); and
- to grant a sublicence to any person, authorizing the sublicensee to do any or all of the acts mentioned in paragraph 2 (d) (i), subject to the terms and conditions of the licence to Her Majesty, with the difference that the sublicence may be restricted to a territory, revocable, or for a shorter period, and shall indicate the sublicensee's website rather than Her Majesty's.
- Copies to Be Delivered
Unless otherwise specified in the Terms of Reference, the Consultant shall deliver to CIDA, prior to final or last payment under the contract:
- one (1) electronic and two (2) hard copies of any work created under the Contract; and
- two (2) copies of any work under the licence mentioned in section 2 (d) in the same quantity and upon the same medium as the copies mentioned in paragraph 2 (e) (i).
Except where the work to be created under the Contract is described therein, the Consultant shall declare and describe in writing to CIDA, as the Contract is executed, any work to be created under the Contract.
4. Clearance of Rights
The Consultant certifies that it is the owner of intellectual property rights in any work for which a license is granted pursuant to section 2 (d) and has obtained, from the owner of rights in any work created outside the contract, written authorization to include the work as a component of, or to associate the work as a complement with, the work created under the contract and to grant the licence mentioned in section 2 (d).
5. Waiver of Moral Rights
- The Consultant shall provide to Her Majesty, at the completion of the Contract or at such other time as Her Majesty may require, a written permanent waiver of moral rights (as that term is defined in the Copyright Act, R.S.C., c. C-42), in a form acceptable to Her Majesty, from every author that contributed to the work which is subject to copyright protection and which is deliverable to CIDA under the terms of the Contract.
- If the Consultant is an author of any of the work referred to in paragraph 5, the Consultant hereby permanently waives the Consultant's moral rights in the work.
6. Intellectual Property Infringement and Royalties
6.1 The Consultant represents and warrants that, to the best of its knowledge, neither it nor CIDA will infringe any Third Party's intellectual property rights in performing the work, and that CIDA will have no obligation to pay royalties of any kind to anyone in connection with the work as defined in paragraph 1 (d).
6.2 If anyone makes a claim against CIDA or the Consultant concerning intellectual property infringement or royalties related to the work, that Party agrees to notify the other Party in writing immediately. If anyone brings a claim against CIDA, according to the Department of Justice Act, R.S.C, 1985, c. J-2, the Attorney General of Canada will have the regulation and conduct of all litigation for or against CIDA, but the Attorney General may request that the Consultant defend CIDA against the claim. In either case, the Consultant agrees to participate fully in the defense and any settlement negotiations and to pay all costs, damages and legal costs incurred or payable as a result of the claim, including the amount of any settlement. Both Parties agree not to settle any claim unless the other Party first approves the settlement in writing.
6.3 The Consultant has no obligation regarding claims that were only made because:
- CIDA modified the work or part of the work without the Consultant's consent or used the work or part of the work without following a requirement of the Contract; or
- the Consultant used equipment, drawings, specifications or other information supplied to the Consultant by CIDA (or by someone authorized by CIDA); or
- the Consultant used a specific item of equipment that it obtained because of specific instructions from the Contracting Authority; however, this exception only applies if the Consultant has included the following language in its own contract with the supplier of that equipment: "[Supplier name] acknowledges that the purchased items will be used by CIDA. If a Third Party claims that equipment supplied under this contract infringes any intellectual property right, [supplier name], if requested to do so by either [Consultant name] or CIDA, will defend both [Consultant name] and CIDA against that claim at its own expense and will pay all costs, damages and legal fees payable as a result of that infringement." Obtaining this protection from the supplier is the Consultant's responsibility and, if the Consultant does not do so, it will be responsible to CIDA for the claim.
6.4 If anyone claims that, as a result of the work, the Consultant or CIDA is infringing its intellectual property rights, the Consultant will immediately do one of the following:
- take whatever steps are necessary to allow CIDA to continue to perform the allegedly infringing part of the work; or
- modify or replace the work to avoid intellectual property infringement, while ensuring that the work continues to meet all the requirements of the Contract; or
- refund any part of the Contract price that CIDA has already paid.
If the Consultant determines that none of these alternatives can reasonably be achieved, or if the Consultant fails to take any of these steps within a reasonable amount of time, CIDA may choose either to require the Consultant to act in accordance with paragraph 6.4 (c), or to take whatever steps are necessary to acquire the rights to use the allegedly infringing part(s) of the work, in which case the Consultant will reimburse CIDA for all the costs it incurs to do so. (Propriété intellectuelle)
Interest on overdue accounts (2003-12-01)
In this clause:
amount due and payable means an amount payable by Her Majesty to the Consultant in accordance with the contract Basis of Payment;
overdue amount means an amount due and payable which has not been paid within thirty (30) days following the date upon which the invoice and statement documentation specified in the Basis of Payment has been received by CIDA;
date of payment means the date of the negotiable instrument drawn by the Receiver General for Canada and given for payment of an amount due and payable;
Bank Rate means the average weekly Bank of Canada rate for the month preceding the current month of the payment date; and
due date means thirty (30) days after receipt of the goods or services, or the Consultant's invoice with sufficient information, whichever is later.
- Her Majesty shall be liable to pay without demand from the Consultant, simple interest at the Bank Rate plus three percent (3%) on any amount overdue for more than 15 days following the due date, and with demand from the Consultant, on a separate invoice, simple interest at the Bank Rate plus three percent (3%) on any amount overdue for 15 days or less following the due date.
- Interest will not be payable on holdbacks or advance payments.
- Interest shall only be paid when Her Majesty is responsible for the delay in paying the Consultant. (Intérêts sur les montants en souffrance)
International sanctions (2003-12-01)
From time to time, in compliance with United Nations obligations or other international agreements, the Government of Canada imposes restrictions on trade, financial transactions or other dealings with a foreign country or its nationals. These sanctions may be implemented by regulation under the United Nations Act (UNA), S.C. 1985, c.U-2, the Special Economic Measures Act (SEMA), S.C. 1985, c.17, or the Export and Import Permits Act (EIPA), S.C. 1985, c. E-19. The Consultant agrees that it will, in the performance of the contract, comply with any such regulations that are in force on the effective date of the contract, and will require such compliance by first-tier sub-consultants and sub-contractors. The Consultant agrees that Canada relies on the Consultant's undertaking described herein to enter into the contract, and that any breach of the undertaking shall entitle the Government of Canada to terminate the contract under the provisions of the contract relating to default by the Consultant, the Consultant further agrees, therefore, that Her Majesty is entitled to recover damages from the Consultant, including re-procurement costs arising out of any such termination. The Consultant agrees that the text defining the nature of sanctions and Countries covered by the sanctions published in the Canada Gazette, Part II, is authoritative, and the Consultant waives any claim against Her Majesty, the Minister, or their employees or agents for any costs, loss, or damages whatsoever that may result from the Consultant's reliance on the text of a regulation obtained from any other source. (Sanctions internationales)
Liability insurance (2003-12-01)
The Consultant, if a licensed professional, shall carry adequate liability insurance to cover any claims resulting from the performance of the services to be rendered under an agreement with CIDA. (A licensed professional is an individual who is licensed by a Canadian authorized licensing body which governs the profession of which the individual is a member, whether it be the practice of law, medicine, architecture, engineering, accounting, or other similar profession). Should the Consultant fail to comply with this requirement, the Minister may, at any time, terminate the contract on the basis of the provisions of Termination Due to Default of Consultant. (Assurance-responsabilité)
In this article:
person includes an individual or group of individuals, a corporation, a partnership, an organization and an association and includes any person who is required to file a return with the registrar pursuant to section 5 of the Lobbyist Registration Act R.C. 1988, c. 53, as amended.
contingency fee means any payment or other compensation that is contingent upon, or is calculated upon, the basis of a degree of success in soliciting or obtaining a Government contract, or negotiating the whole or any part of its terms.
By signing the contract, the Consultant certifies that it has not, directly or indirectly, paid, or will pay, a contingency fee for the solicitation, negotiation or obtaining of the contract to any person other than an employee of the Consultant acting in the normal course of the said employee's duties. All accounts and records pertaining to payments of fees, or other compensation, for the solicitation, obtaining or negotiation of the contract shall be subject to the provisions of the contract. If the Consultant certifies falsely under this section or is in default of the obligations contained herein, the Minister may either terminate the contract for default, in accordance with its provisions, or recover from the Consultant, by way of reduction of the contract price, or otherwise, the full amount of the contingency fee. (Lobbyiste)
Members of the House of Commons of Canada (2003-12-01)
No member of the House of Commons of Canada shall be admitted to any share or part of the contract, or to any benefit that arise therefrom. (Députés de la Chambre des Communes du Canada)
Where in the contract any notice, request, direction or other communication is required to be given or made by either party, it shall be in writing and is effective if delivered in person, or courier, sent by registered mail, by telegram, by telex or by facsimile addressed to the party for whom it is intended at the address mentioned in the contract. Any notice, request, direction or other communication shall be deemed to have been given if by registered mail, when the postal receipt is acknowledged by the other party; by telegram, when delivered by the carrier; and by telex or by facsimile, when transmitted. The address of either party may be changed by notice in the manner set out in this provision. (Avis)
Replacement of personnel (2003-12-01)
The Consultant shall replace any member of the Consultant's personnel whose services or qualifications are deemed inadequate by CIDA for the purposes of the contract. The application of the replacement shall be subject to CIDA's approval. The cost of this measure shall be absorbed by the Consultant.
The Consultant shall replace any member of the Consultant's personnel assigned to the project if CIDA and the Consultant deem it impossible, or improper, for this member to continue performing his duties due to external factors beyond the control of CIDA, the Consultant, or the member. The replacement's candidacy shall be subject to CIDA's approval. The cost of this measure shall be absorbed by CIDA.
The Consultant may, with CIDA's approval, change any of the positions listed or replace any member of the Consultant's personnel assigned to the project, as the case may be, if the Consultant is able to demonstrate that there are exceptional circumstances which require the Consultant to do so; and that the Consultant's performance of the services under the contract will not suffer. The Consultant shall also submit for CIDA's approval detailed terms of reference for these positions and/or the application of the proposed replacement for verification of the merits of the proposed new positions and the experience and qualifications of the proposed candidate. The cost of this measure shall be absorbed by the Consultant.
The fees of any replacement may be subject to negotiation in accordance with CIDA's procedures on fee determination. If the replacement has equivalent or superior qualifications, no negotiation should normally be initiated. Whatever the situation, the rate for the replacement must not be interpreted as the CIDA rate as established under the non-competitive fee determination policy. As for fees related to a position, these fees will not exceed the negotiated rates specified in the contract for the said position except under exceptional circumstances. (Remplacement du personnel)
Right of set-off (2003-12-01)
Without restricting any right of set-off or holdback given or implied by law or by any provision of the contract, Her Majesty may set off against any amount payable to the Consultant by Her Majesty under the contract, any amount payable to Her Majesty by the Consultant under the contract. (Droit de compensation)
Successors and Assigns (2003-12-01)
The contract shall enure to the benefit of and be binding upon the parties hereto and their lawful heirs, executors, administrators, successors and assigns. (Successeurs et ayants droit)
Termination due to default of consultant (2003-12-01)
Where the Consultant is in default in carrying out any of its obligations under the contract, the Minister may, upon giving written notice to the Consultant, terminate for default in whole or in part the contract, either immediately, or at the expiration of a cure period specified in the notice if the Consultant has not cured the default to the satisfaction of the Minister within that cure period.
Where the Consultant becomes bankrupt or insolvent, makes an assignment for the benefit of any statute relating to bankrupt debtors, or where a receiver is appointed under a debt instrument or a receiving order is made against the Consultant, or an order is made or a resolution passed for the winding up of the Consultant, the Minister may, to the extent permitted by the laws of Canada, upon giving notice to the Consultant, immediately terminate for default the whole or any part of the contract.
In the event that the Minister terminates the work in whole, or in part, under this provision, the Minister may arrange, upon such terms and conditions and in such a manner as the Minister deems appropriate, for the work to be completed that was so terminated, and the Consultant shall be liable to Her Majesty for any excess costs relating to the completion of the work.
Upon termination of the work under these provisions, the Minister will require the Consultant to deliver and transfer to Her Majesty, in the manner and to the extent directed by the Minister, title of any finished work which has not been delivered and accepted prior to such termination and any materials or work in process which the Consultant has specifically acquired or produced for the fulfilment of the contract. Her Majesty shall pay the Consultant for all such finished work, delivered pursuant to such direction and accepted by Her Majesty, the cost to the Consultant of such finished work, plus the proportionate part of any fee fixed by the said contract and shall pay or reimburse the Consultant the fair and reasonable cost to the Consultant of all materials or work in process delivered to Her Majesty pursuant to such direction. Her Majesty may withhold from the amounts due to the Consultant such sums as the Minister determines to be necessary to protect Her Majesty against excess costs for the completion of the work.
The Consultant shall not be entitled to be reimbursed any amount which, taken together with any amounts paid, or becoming due, to the Consultant under the contract, exceeds the contract price applicable to the work or the particular thereof. If, after the Minister issues a notice of termination under these provisions, it is determined by the Minister that the default of the Consultant is due to causes beyond the control of the Consultant, such notice of termination shall be deemed to have been issued pursuant to these provisions, and the rights and obligations of the parties hereto shall be governed by the clause entitled "Termination or Suspension of Work", which forms part of these General Conditions. (Résiliation pour défaut de l'expert-conseil)
Termination or suspension of work (2003-12-01)
The Minister may, by giving written notice to the Consultant, terminate or suspend the work with respect to all or any part or parts of the work not completed.
All work completed by the Consultant to the satisfaction of the Minister before the giving of such notice shall be paid for by Her Majesty in accordance with the provisions of the contract and, for all work not completed before the giving of such notice, Her Majesty shall pay the Consultant's costs as determined under the provisions of the contract and, in addition, when the Consultant's services are remunerated according to a fixed price arrangement, Her Majesty shall pay an amount representing a fair and reasonable fee in respect of such work. If the Consultant's services are not remunerated according to a fixed price arrangement, the said reasonable fee in respect of the work carried out shall be deemed to be included in any fees, mark-ups or unit prices stipulated in the contract and paid or payable with respect to that part of the work completed on the date of the notice given, in conformance with this provision.
In addition to the amount which the Consultant shall be paid under this provision, the Consultant shall be reimbursed for the Consultant's cost of and incidental to the cancellation of obligations incurred by the Consultant pursuant to such notice and obligations incurred by, or to which the Consultant is subject with respect to the work.
Payment and reimbursement under these provisions shall be made only to the extent that it is established to the satisfaction of the Minister that the costs and expenses were actually incurred by the Consultant and that the same are fair and reasonable and are properly attributable to the termination or suspension of the work, or the part thereof so terminated.
The Consultant shall not be entitled to reimbursement of any amount which, taken together with any amounts paid or becoming due to the Consultant under the contract, exceeds the contract price applicable to the work, or the particular part thereof.
The Consultant shall have no claim for damages, compensation, loss of profit, allowance or otherwise, by reason of, or directly or indirectly arising out of any action taken or notice given by the Minister under these provisions, except as expressly provided therein. (Arrêt ou suspension des travaux)
Time of the essence (2003-12-01)
Time is of the essence in the performance of the contract. Any delay by the Consultant in performing the Consultant's obligations, which is caused by an event beyond the control of the Consultant, and which could not have been avoided by the Consultant without incurring unreasonable cost through the use of work-around plans, including alternative sources or other means, constitutes an excusable delay. Events may include, but are not restricted to: acts of God, acts of local governments, fires, floods, epidemics, quarantines, strikes or labour unrest, embargoes, wars, blockades and unusually severe weather.
The Consultant shall give notice to the CIDA Representative immediately after the occurrence of the event that causes the excusable delay. The notice shall state the cause and circumstances of the delay and indicate the portion of the work affected by the delay. When requested to do so by the CIDA Representative, the Consultant shall deliver a description of work-around plans in a form satisfactory to CIDA Project Authority, including alternative sources and any other means that the Consultant will utilize to overcome the delay and endeavour to prevent any further delay. Upon approval, in writing, by the CIDA Representative of the work-around plans, the Consultant shall implement the work-around plans and use all reasonable means to recover any time lost as a result of the excusable delay.
Unless the Consultant complies with the notice requirements set forth in the contract, any delay that would constitute an excusable delay may be deemed not to be an excusable delay. Notwithstanding that the Consultant has complied with the requirements of this provision, CIDA may exercise any right of termination contained in these General Conditions. (Importance des délais)
Warranty by consultant (2003-12-01)
The Consultant warrants that it has the necessary qualifications, including the knowledge, skill and ability to perform the services required under the contract. The Consultant warrants that it shall provide a quality of service at least equal to that which Consultants generally would expect of a competent Consultant in a like situation. (Garantie donnée par le consultant)
- Changes Within Workplans—If there are changes to the scope, cost or timing of workplan components that fall within the overall scope, value and time frame of the workplan, Consultants do not have to seek prior approval for these changes.
- Changes Outside Workplans—If changes are required beyond what had been approved in a workplan but within the overall scope, time frame and value of the contract, then a request for prior approval must be sought by the Consultant from CIDA for these changes. The changes requiring prior CIDA approval shall normally be limited to the following three cases:
- changes in personnel and rates outside those agreed to in workplans;
- changes in technical specifications agreed to in workplans;
- any increase or decrease of more than 10% in the scope (activities and results), timing and distribution of cost of any workplan component that fall outside workplans, but within the overall scope, time frame and value of the contract.
Approval of the workplan should be provided either in the form of an exchange of letters signed by all parties managing the contract within their respective delegated authority or by having all parties sign the workplan itself as an indication of their approval, taking into consideration the terms and conditions of the contract.
As with workplans, approvals of requests for changes will be in the form of an exchange of letters signed by both parties managing the contract within their respective delegated authority, taking into consideration the terms and conditions of the contract. (Plans de travail)
- Date Modified: