Law Department and Procurement

Dan Ciraco

&

Sarah Maywood

September 2011

1

Law Department & Procurement

OBJECTIVES:

Review Law Department’s role

Review Goods and Services Agreement (“GSA”)

Role of Law Department

The Law Department assists with procurement primarily by:

working with/advising Supply Management

providing advice, assistance and tools to business units during the contracting process

CBC Contracting Process

Commence the contracting process ONLY after:

Supply Management has been consulted appropriate solicitation completed (e.g. RFP, RFI, etc.) (Law Department involved earlier in the case of an RFP) and Procurement Checklist completed up to # 12

https://io.cbc.ca/io/content/content.aspx?pageid=corporationarticle&folderId=4343&contentId=42435&locale=4105

“Contract” – According to the DSA

Contracts/agreements are legally binding arrangements between two or more parties “The term “Contract” includes any document that commits CBC/Radio - Canada, undertaking, agreement, work order, binding letter of intent, purchase order, contract and Corporate document.”

https://io.cbc.ca/io/content/content.aspx?pageid=policiesarticle&folderId=1739&contentId=14053&locale=4105

N.B.: An e-mail could be a contract.

Why do we need contracts?

1) CBC Policies: Procurement: Policy 2.3.06 and Delegation of Signing Authority: Policy 2.9.03 require properly executed written contracts.

2) Disputes: Courts prefer written evidence to determine the parties’ intentions; find solution (i.e. more reliable evidence).

3) Practical Tool: Helps guide parties through a transaction/relationship (i.e. others know the details of the

deal).

Law Department Involvement

Information about the GSA and when the Law Department must be involved can be found at:

https://io.cbc.ca/io/content/content.aspx?folderId=4343&contentId=42435&locale=4105

N.B. the different requirements:

1. Law Dept involvement – see above link

2. DSA – when you require a contract and signatories

3. Procurement – bidding process and type of contract

Goods / Services Definitions

“Services” means duty or labour rendered by one person to another (e.g. production services, professional and consulting services; real estate and construction services; maintenance agreements; technology related services)

When personal services, meaning agreements with individuals, (both union and non-union) are involved a personal services contract must be prepared through Business Affairs or PSC Livelink, who can be contacted at BusAffairsTor@CBC.CA.

“Goods” are tangible, movable, physical items (e.g. production supplies; technology related products; general products required to support operations; Off-the-shelf products)

8

Contract Customization

The GSA may not work for every situation. Customization may be required for: Technology agreements with complex intellectual property ownership (i.e. software development, software licensing) Rental / Lease of equipment Other complicated deals (e.g. warehousing)

Contact the Law Department if you are unsure the GSA is appropriate. Call ext. 5523

 

Timelines and Process

Fill out the GSA and send it to Supplier to execute. Reject their templates.

 Large Suppliers may insist on using their own agreement/template (i.e.. Sony or Microsoft) - Battle of the templates – involve the Law Department.

N.B. Third party agreements (anything other than the GSA) must be reviewed by the Law Department. This will require additional time.

 

Negotiations

REMEMBER: Negotiations can add anywhere from 2 weeks to several months to the process. Factor this into your business plan and timeline.

Under an RFP you will know if negotiations are required because Supplier will have already filled out compliance with CBC standard legal terms (this can be considered when selecting Supplier).

Finalization

Once the agreement is accepted by the parties it must be executed

Agreement execution instructions and methods are available at:

https://io.cbc.ca/io/content/content.aspx?pageid=corporationarticle&folderId=4343&contentId=41719&locale=4105

Contract Management

Each department is responsible for storing and managing all of its originally executed contracts.

Law Department requests a copy of the executed contract if it was reviewed or negotiated by Law Department.

If changes are required during the term of the contract, contact the Law Department and an amendment can be prepared and executed.

Review of Steps

1) Contact Supply Management to confirm solicitation method/contracting process 2) Complete Procurement Checklist items up to #12 3) Fill out GSA and involve the Law Department when required4) Send GSA to Supplier to execute 5) Finalize checklist 6) Ensure you and Law Department have copies of contract 7) Manage contract/follow-up 8) Contact Law Department if you require an amendment

If you have questions at any time in the process, contact the Law Department at ext. 5523