18 November 2022
Hon. Jill Green
Minister of Service New Brunswick
Lincoln Place
P.O Box 1998
Lincoln Place
Fredericton, New Brunswick
E3B 5G4
Via email: jill.green@gnb.ca
Re: Construction Regulation under the NB Procurement Act
Dear Minister Green:
I am writing today regarding the proposed new construction regulation under the New Brunswick Procurement Act. We have consultation with the industry, which is concerned about two key aspects of the regulation:
- The discretion afforded to the Minister’s Office; and
- The definition of a “New Brunswick company”.
Minister’s Discretion
The discretion afforded to the Minister to disqualify a contractor for “significant or persistent deficiencies in the performance of any substantive requirement or obligation under a prior contract or contracts”. The Minister already has the protection, pursuant to the Construction Remedies Act, of mandatory performance bonds to enforce the repair of deficiencies. With this wording, the Minister is granted, through its staff, a broad and overreaching ability to disqualify a contractor for alleged deficiencies.
If a contractor is disqualified, they must appeal to the Court of King’s Bench to overturn the disqualification. The judicial review of the Minister’s decision will be based on whether the Minister followed the process and made a reasonable decision. The threshold to overturn this type of decision is a high standard that must be met by the contractor to overturn the Minister’s decision.
Industry is asking for an independent body or an independent appeal process for a review on a correctness standard. Given the requirement for contractual security in the form of bonds, the Minister is not at risk of defaulting on most contracts. Given the performance guarantees required by the province, the reasons for disqualification should be better defined and/or less discretion given to the Minister, along with an alternative appeals process that is less onerous than an appeal to the King’s Bench.
Definition of a New Brunswick Company
As articulate to government by the construction sector, the wording used in the regulation does not reflect the industry in NB and we need the definitions of “New Brunswick Contractor” and “place of business” better defined. For example, to be a “New Brunswick contractor” as defined, one must have a “place of business”, which is defined as an establishment where a contractor regularly conducts its activities on a permanent basis, is clearly identified by name and is accessible during normal business hours. More than 50% of member companies in the Construction Association of New Brunswick and the New Brunswick Road Builders Association do not have storefront operations and therefore, under this regulation would not be considered a “New Brunswick Contractor”.
We are supporting the position of the construction industry by requesting that alternative or additional criteria be used to define a “New Brunswick” contractor. These might include such identifiers as paying WorkSafeNB dues or having a membership in the provincial association(s).
Please contact me at any time with questions or should you require further information.
Sincerely,
Krista Ross, CEO, Fredericton Chamber of Commerce
cc: John-Ryan Morrison, Executive Director, New Brunswick Construction Association
cc: Tom McGinn, Executive Director, New Brunswick Road Builders Association