Certifications

The following certification requirements apply to the Trading Partner Agreement (TPA).

Suppliers are requested to print and complete these certifications by filling in the appropriate spaces below and include it with their proposal.

1. CERTIFICATION OF EDUCATION AND EXPERIENCE

"We hereby certify that all statements made with regard to the education and the experience of individuals posted in the PS Online are accurate and factual, and we are aware that the Department of Public Works and Government Services and the PS Online Regional Representative reserves the right to verify any information provided in this regard and that untrue statements may result in the Supplier's Trading Partner Agreement being set-aside and their account being de-activated or any other action that the Minister may consider appropriate."

____________________
(Signature)

____________________ ______________
(Name and Title) & (Date)

2. CERTIFICATION OF AVAILABILITY AND STATUS OF PERSONNEL
2.1 Availability of Personnel:
The Supplier certifies that, should it be authorized to provide services under any contract resulting from the PS Online, the persons proposed in its proposal shall be available to commence performance of the work as required by the Project Authority and at the time specified or agreed to with the Project Authority.

Once the contract is issued, proposed substitutes must achieve the same rated qualifications or greater as the original resource at a daily rate no higher than the original resources being replaced and will be subject to approval by the Project Authority and the Contracting Authority of that project.

____________________
(Signature)

____________________ ______________
(Name and Title) & (Date)

2.2 If the Supplier has proposed any person in fulfillment of this requirement who is not an employee of the Supplier, the Supplier hereby certifies that it has the written permission from such person to propose the services of such person in relation to the Work to be performed in fulfillment of this requirement and to submit such person's résumé to the Contracting Authority.

The Supplier MUST, upon the request of the Contracting Authority, provide a copy of the certification by the non-employees proposed confirming permission and availability. The Supplier agrees that failure to comply with such a request may lead to Supplier's Trading Partner Agreement being set-aside and the Supplier's account in the PS Online being de-activated.

____________________
(Signature)

____________________ ______________
(Name and Title) & (Date)

3. WORK FORCE REDUCTION PROGRAMS

As a result of the recent implementation of various programs to reduce the public service, Suppliers must provide information regarding their status as former public servants in receipt of either a lump sum payment or a pension, or both, pursuant to the terms of the Early Departure Incentive (EDI) Program, the Early Retirement Incentive (ERI) Program, the Forces Reduction Program, the Executive Employment Transition Program and any other current and future similar programs implemented by Treasury Board. Therefore, Suppliers must make available the following details:

1. date and amount of lump sum payment incentive;
2. terms and conditions of the lump sum payment incentive (including termination date);
3. rate of pay on which the lump sum payment was based;
4. whether or not the $5,000 exemption has been reached.

In the event that a contract is awarded to a former public servant during the period covered by the lump sum payment, the contract fee must be abated (reduced) by an amount corresponding to the number of weeks remaining in the Contractor's lump sum payment period after the beginning of the Contract.

This reduction is subject to an exemption of a maximum of $5,000 (including Goods and Services Tax or Harmonized Sales Tax, as appropriate) applicable to one or more contracts during the period covered by the lump sum payment.

For the purposes of this Trading Partner Agreement, former public servant is defined as:

1. an individual;
2. an individual who has incorporated;
3. a partnership made up of former public servants; or
4. a sole proprietorship or entity where the affected individual has a major interest in the entity.

4. WORK FORCE REDUCTION PROGRAM - DETAILS

In accordance with the requirements of the clause entitled "Work Force Reduction Programs", included above, suppliers must provide information regarding their status as former public servants in receipt of either a lump sum payment or a pension, or both, pursuant to the terms of the Early Departure Incentive (EDI) Program, the Early Retirement Incentive (ERI) Program, the Forces Reduction Program, the Executive Employment Transition Program and any other current and future similar programs implemented by Treasury Board.

All suppliers shall indicate their status by checking the applicable line and sign the certification below. Proposals that are subject to the Work Force Reduction Program (s), shall also include the specified details. Failure to indicate the status will be considered as having not met this requirement and will render the TPA non-responsive.

() This proposal is not subject to the Work Force Reduction Program(s).
() This proposal is subject to the Work Force Reduction Program(s).
Name of Contractor:________________________________________
Terms and Conditions of the Lump Sum Payment Incentive - copy attached:________
Date of Termination of Employment as a Public Servant:________________
Amount of Lump Sum Payment: $_____________
Rate of Pay on which Lump Sum Payment is based: $_____/Week
Period of Lump Sum Payment:
Start Date:__________
Completion Date:_________________
Weeks:__________

Other contracts subject to Work Force Reduction Program Restrictions:

Contract Number Contract Amount (Professional Fees)

_______________ $_______________

_______________ $_______________

_______________ $_______________

  Total: $_______________

____________________
(Signature)

____________________ ______________
(Name and Title) & (Date)

5. FEDERAL CONTRACTORS PROGRAM FOR EMPLOYMENT EQUITY

Organizations that are subject to the Federal Contractors Program for Employment Equity (FCP-EE) but that have been declared ineligible to receive government contracts of goods and services over the threshold for solicitation of bids as set out in the Government Contract Regulations (GCRs) (currently $25,000, including all applicable taxes) by Human Resources Development Canada-Labour (HRDC-Labour), either as a result of a finding of non-compliance by HRDC-Labour, or following their voluntary withdrawal from the FCP-EE for a reason other than a reduction in their workforce, have been advised by HRDC-Labour that as a consequence of this action they are no longer eligible to receive any government contract over this threshold. Consequently, their certificate numbers have been cancelled and their names have been placed on HRDC-Labour s List of Ineligible Contractors. Bids from such organizations will be considered non-responsive.

The Bidder certifies that it has not been declared ineligible by HRDC-Labour to receive government contracts over the GCR threshold for solicitation of bids (currently $25,000, including all applicable taxes) as a result of a finding of non-compliance, or as a result of having voluntarily withdrawn from the FCP-EE for a reason other than a reduction in their workforce.

The Supplier acknowledges that the Minister shall rely on this certification to award the Contract. Should a verification by the Minister disclose a misrepresentation on the part of the Bidder, the Minister shall have the right to treat any contract resulting from this bid as being in default, and to terminate it pursuant to the default provisions of the Contract.

Signature of Authorized Representative:_____________________________

____________________ ______________
(Name and Title) & (Date)

6. LIMITATION LIABILITY

1. Liability of Canada and the Contractor to Third Parties: Each Party to this Contract agrees it is responsible to any third party for injury or losses that the third party may suffer to the extent such Party to this Contract caused them, where the third party has a cause of action directly against that Party in respect of the injury or losses. The Parties agree that with respect to such third party claims against the Contractor, the Contractor shall be responsible for damages arising out of the injury or losses to the extent that it caused them, including those situations where Canada may be required to pay the damages caused by the Contractor as a result of joint and several liability. With respect to third party claims where the third party does not have a cause of action directly against the Party causing the damage, this subsection 1 does not prevent or restrict in any way Canada s right to pursue and enforce any rights that it may have against the Contractor. In the event of any conflict between this subsection 1 and any other subsection of this clause, this subsection 1 shall prevail.
2. Extent of Contractor s Liability for Damages: Regardless of the basis on which Canada may be entitled to claim damages from the Contractor (whether in contract, tort or any other cause of action), the Contractor is liable to Canada only for the following:
   1. all damages and costs resulting from intellectual property right infringement as set out in this Contract;
   2. all damages for physical injury, including death, caused by the Contractor, its employees, agents or subcontractors;
   3. all direct damages for loss of or physical harm to tangible property and real property caused by the Contractor, its employees, agents or subcontractors;
   4. all damages for breach of confidentiality;
   5. all damages arising from claims for liens, attachments, charges or other encumbrances or claims upon or in respect of any materials, parts, work-in-process or finished work furnished to, or in respect of which any payment has been made by, Canada, provided that this paragraph does not apply to claims of intellectual property infringement which claims are covered in paragraph 2. (a) above; and,
   6. 1. Applicable for IM/IT requirements plus requirements of IM/IT with a component of none IM/IT services:
      any other direct damages caused by the Contractor, its employees, agents or subcontractors in relation to this Contract, including re-procurement costs as defined below, and restoration of records to the extent that the Contractor fails to comply with subsection 4 below, up to an aggregate maximum for this paragraph 2. (f) the greater of 75% times the total estimated cost, or $1,000,000.
   7. 2. Applicable for non IM/IT requirements:
      Notwithstanding any other clause in the Contract but subject to the remaining provisions of 1 and 2 of this clause, the Contractor's total cumulative liability to Canada for all losses or damage suffered by Canada as a result of all breaches of the Contractor's obligations under the Contract or the faulty carrying out of the Contract shall be limited to the contract value.
3. The Contractor shall not be liable to Canada for the following:
   1. damages of third parties claimed against Canada except those referred to in paragraphs 2. (a), (b), (c), (d) or (e) above;
   2. harm to Canada s records or data, except for the restoration set out in subsection 4 below, and subject to the limitation set out in paragraph 2. (f) above; or
   3. special, indirect or consequential damages (other than the payments referred to in paragraph 2. (a) above, and the damages referred to in paragraph 2. (b) above), even if the Contractor is made aware of the potential for such damages, including lost profits and lost savings.
4. Canada is responsible for maintaining adequate backup of its records and data to enable their restoration if needed for any reason. If Canada s records or data are harmed by the Contractor s or a subcontractor s negligence or willful act, the Contractor is responsible for restoring Canada s records and data to the same state as in the last available backup copy.
5. For the purposes of this clause:
   1. total estimated cost shall mean the dollar amount shown on the first page of the Contract in the cell titled Total Estimated Cost;
   2. re-procurement costs shall mean all identifiable direct costs incurred by Canada to re-procure the Work with another contractor, including deinstallation and return of the Work to the Contractor, administrative costs of selecting another contractor or retendering all or part of the Contract, as applicable, and any increase in the price payable by Canada for the other Work having equivalent functionality, performance and quality; and
   3. the term Contract shall apply to stand-alone contracts, and to each call-up, purchase order and other contractual document, irrespective of its title, issued under a Standing Offer or a Supply Arrangement.

INTELLECTUAL PROPERTY RIGHT INFRINGEMENT

1. If a third party claims that equipment or software that the Contractor provides under the Contract infringes any intellectual property right, the Contractor, if requested to do so by Canada, will defend Canada against the claim at the Contractor's expense. In this regard, the Contractor will pay all costs, damages and legal fees that a court finally awards, provided that Canada:
   1. promptly notifies the Contractor in writing of the claim; and
   2. co-operates with the Contractor in, and allows the Contractor full participation in, the defence and related settlement negotiations; and
   3. obtains the Contractor's prior approval to any agreement resulting from settlement negotiations held with the third party.

   The Contractor shall participate in any claims, action or proceeding arising under subsection 1 and no such claim, action or proceeding shall be settled without the prior written approval of the Contractor and Canada.

2. If such a claim is made or appears likely to be made, Canada agrees to permit the Contractor to enable Canada at the Contractor's expense, to continue to use the equipment or software or to modify or replace it with equipment or software which has published specifications equal or superior to the equipment or software being replaced. If the Contractor determines that none of these alternatives is reasonably available, Canada may elect, at the Contractor's expense, to independently secure the right to continue to use the equipment or software, or Canada may require the Contractor to accept the return of the equipment or software and to refund all monies paid to the Contractor under the Contract for the equipment and software, as well as all amounts paid for services and license and development fees.
3. The provisions of subsections 1 and 2 do not apply in situations where the Contractor was instructed by Canada to purchase a specific item of equipment or software from a specific source on behalf of Canada. In this case, the Contractor shall ensure that its subcontract for the equipment or software states that:

   "If a third party claims that equipment or software that the subcontractor supplies under the Contract infringes any intellectual property right, the subcontractor, if requested to do so by either the Contractor or Canada, will defend the Contractor and Canada against that claim at the subcontractor's expense and will pay all costs, damages and legal fees that a court finally awards."

   In the event that the Contractor is unable to incorporate this into its subcontract, then it shall advise Canada of the situation and not proceed with the subcontract without receiving written notice from Canada that the level of intellectual property right infringement protection is acceptable.

4. Without prejudice to Canada's right to terminate the Contract for default prior to completion of the Work, the above represents the Contractor's entire obligation to Canada regarding any claim of infringement.
5. The Contractor has no obligation regarding any claim based on any of the following:
   1. Canada's unauthorized modification of the equipment or software, or Canada's unauthorized use of the equipment or software in other than its published specified operating environment;
   2. the combination, operation or use of the equipment or software with any product, data or apparatus that the Contractor did not provide under the Contract, or which combination, operation or use the Contractor did not authorize or approve in advance, if infringement would not have occurred but for such combination, operation or use."

We certify that we are in compliance with the modification to the General Conditions.

____________________

Signature of Authorized Representative

____________________ ______________

(Name and Title) & (Date)

7. ABORIGINAL SUPPLIERS

For further information on the Set-Aside Program for Aboriginal Business, contact the Access to Federal Procurement Directorate in the Department of Indian Affairs and Northern Development at (819) 997-8383 or (819) 997-8746 or fax (819) 994-0445

Certification Requirements for the Set-Aside Program for Aboriginal Business
An Aboriginal supplier who submits the Trading Partner Agreement (TPA signature page) must complete and submit this certification. Failure to submit this certification will result in your request for an account being rejected.

1.  
   1. I, ______________________________________ (Name of duly authorized representative of business) hereby certify that ______________________________ (Name of business) meets, and shall continue to meet throughout the duration of the Trading Partner Agreement or contracts through the PS Online, the requirements for this program as set out in the document entitled "Requirements for the Set-Aside Program for Aboriginal Business", which document I have read and understand.
   2. The aforementioned business agrees to ensure that any subcontractor it engages with respect to the contract shall, if required, satisfy the requirements set out in "Requirements for the Set-Aside Program for Aboriginal Business."
   3. The aforementioned business agrees to provide to Canada, immediately upon request, information to substantiate a subcontractor's compliance with this program.

   PLEASE CHECK THE APPLICABLE BOXES IN 2 AND 3 BELOW

2.  

   1. The aforementioned business is an Aboriginal business which is a sole proprietorship, band, limited company, co-operative, partnership or not-for-profit organization, [ ]

      OR

   2. The aforementioned business is a joint venture between two or more Aboriginal businesses or an Aboriginal business and a non-Aboriginal business. [ ]
3. The Aboriginal business or businesses have:

   1. fewer than six full-time employees [ ]

      OR

   2. six or more full-time employees [ ]
4. The aforementioned business agrees to immediately furnish to Canada, such evidence as may be requested by Canada from time to time, corroborating this certification. Such evidence shall be open to audit during normal business hours by a representative of Canada, who may make copies and take extracts from the evidence. The aforementioned business agrees to provide all facilities for audits and to furnish information requested by Canada with respect to the certification.
5. It is understood that the civil consequences of making an untrue statement in the bid documents, or of not complying with the requirements of the Program or failing to produce satisfactory evidence to Canada regarding the requirements of the Program, may include: forfeiture of the bid deposit; retention of the holdback; disqualification of the business from participating in future contracts under the Program; and/or termination of the contract. In the event that the contract is terminated because of an untrue statement or non-compliance with the requirements of the Program, Canada may engage another contractor to complete the performance of the contract and any additional costs incurred by Canada shall, upon the request of Canada, be borne by the aforementioned business.

Date _____________________

Signature ____________________________________

Place ____________________

Title (Duly Authorized Representative of Business)

______________________________________

For: (Name of Business)

_______________________________________

Determining Factors
Factors that may be considered in determining whether Aboriginal persons have at least 51% ownership and control of an Aboriginal business include:

• Capital Stock and Equity Accounts, i.e., preferred stock, convertible securities, classes of common stock, warrants, options
• Dividend policy and payments
• Existence of Stock Options to employees
• Different treatment of Equity transactions for Corporations, Partnerships, Joint Ventures, Community organizations, Cooperatives, etc.
• Examination of Charter Documents, i.e., corporate charter, partnership agreement, financial structure
• Concentration of ownership or managerial control in partners, stockholders, officers trustees and directors based definition of duties
• Principal occupations and employer of the officers and directors to determine who they represent, i.e. banker, vested ownerships
• Minutes of directors meetings and stockholders meetings for significant decisions that affect operations and direction
• Executive and employee compensation records for indication of level of efforts associated with position
• Nature of the business in comparison with the type of contract being negotiated
• Cash management practices, i.e., payment of dividends - preferred dividends in arrears
• Tax returns to identify ownership and business history
• Goodwill contribution/contributed asset valuation to examine and ascertain the Fair Market value of non cash capital contributions
• Contracts with owners, officers and employees to be fair and reasonable
• Stockholder authority, i.e. appointments of officers, directors, auditors
• Trust agreements made between parties to influence ownership and control decisions
• Partnership - allocation and distribution of net income, i.e., provision for salaries, interest on capital and distribution share ratios
• Litigation proceedings over ownership
• Transfer pricing from non-Aboriginal joint venture
• Payment of management or administrative fees
• Guarantees made by the Aboriginal business
• Collateral agreements

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The following certification should be included in any bids provided by the supplier for set-aside requirements:

OWNER/EMPLOYEE CERTIFICATION FORM

1. I, ________________________________________________, am an owner and/or full-time employee
   of_____________________________________, and an Aboriginal person, as described in the document "Requirements for the Set-Aside Program for Aboriginal Business".
2. I certify that the above statement is true and consent to its verification upon the request of Canada.

Date ___________________

Signature of Owner/Employee

_____________________________________

Place ___________________