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ontario regulation 422/23

made under the

Building Ontario Businesses Initiative Act, 2022

Made: December 8, 2023
Filed: December 21, 2023
Published on e-Laws: December 22, 2023
Published in The Ontario Gazette: January 6, 2024

GeneraL

Definitions

1. In this Regulation,

“business structure” includes a sole proprietorship, partnership, corporation or other business structure; (“structure d’entreprise”)

“designated broader public sector organization” has the same meaning as in the Broader Public Sector Accountability Act, 2010; (“organisme désigné du secteur parapublic”)

“emergency” means a situation or impending situation that could result in serious harm to persons or substantial damage to property; (“situation d’urgence”)

“government entity” has the same meaning as in the Supply Chain Management Act (Government, Broader Public Sector and Health Sector Entities), 2019; (“entité gouvernementale”)

“treasury operations services” means services related to the management of financial assets and liabilities, and includes services related to any of the following activities:

1.  Borrowing.

2.  Debt management.

3.  Risk management.

4.  Cash management.

5.  Banking.

6.  Investing.

7.  Services that are ancillary to the activities described in paragraphs 1 to 6, including advisory and information services. (“services d’opérations de trésorerie”)

Ontario business

2. (1) A business that meets the following requirements is considered to be an Ontario business for the purposes of the Act:

1.  The business is a supplier, manufacturer or distributor of any business structure that conducts its activities on a permanent basis in Ontario.

2.  The business either,

i.  has its headquarters or main office in Ontario, or

ii.  has at least 250 full-time employees in Ontario at the time of the applicable procurement process.

(2) In determining whether a business is considered to be an Ontario business for the purposes of the Act, a public sector entity may rely on a representation by the business that it meets the requirements of subsection (1).

Goods and services

3. (1) For the purposes of section 3 of the Act, all goods and services are prescribed except the goods and services listed in subsection (2).

(2) The following goods and services are not prescribed for the purposes of section 3 of the Act:

1.  Treasury operations services procured by the Ministry of Finance or the Ontario Financing Authority, including treasury operations services procured by the Ministry of Finance or the Ontario Financing Authority for a public body as defined in Part II of the Capital Investment Plan Act, 1993.

2.  A good or service required for an emergency.

3.  A good or service procured pursuant to a standing offer, vendor of record arrangement or a multi-use list.

4.  A good or service procured for commercial sale or resale or for use in the production of a good or service intended for commercial sale or resale.

5.  The services of a lawyer, paralegal or notary public.

6.  The services of an expert witness to be used in a court or legal proceeding.

7.  A good or service that is not available from an Ontario business.

Threshold

4. For the purposes of section 3 of the Act, the prescribed threshold amount is the following:

1.  For a public sector entity that is a government entity,

i.  in respect of a procurement process for goods, $30,300, and

ii.  in respect of a procurement process for services, $121,200.

2.  For a public sector entity that is a designated broader public sector organization,

i.  in respect of a procurement process for goods, $121,200, and

ii.  in respect of a procurement process for services, $121,200.

Threshold determination, etc.

5. (1) For the purposes of section 4, the value of goods or services in a procurement process shall be determined based on the amount that the public sector entity reasonably expects to pay in respect of the procurement process for those goods or services.

(2) If a procurement process is for both goods and services, the threshold is met if either the amount determined in respect of the goods or the amount determined in respect of the services meets the applicable threshold set out in section 4.

Preference

6. For the purposes of section 3 of the Act, preference shall be given to Ontario businesses by,

(a)  limiting eligibility to participate in the procurement process to one or more Ontario businesses; or

(b)  if eligibility is not limited as described in clause (a), by allocating a 10 per cent evaluation advantage to Ontario businesses that participate in the procurement process.

Exemption, trade agreements

7. A public sector entity is exempt from the requirements of the Act when conducting a procurement process that is subject to an international or domestic trade agreement that requires the public sector entity to provide non-discriminatory treatment in respect of the procurement process.

Transitional matters

8. The requirements of the Act do not apply before April 1, 2024 and do not apply to public sector entities in respect of procurement processes commenced by negotiation or the issuance of a procurement document before April 1, 2024.

Commencement

9. (1) Except as otherwise provided in this section, this Regulation comes into force on the day it is filed.

(2) Sections 1 to 7 come into force on the latest of the following days:

1.  April 1, 2024.

2.  The day section 3 of Schedule 2 (Building Ontario Businesses Initiative Act, 2022) to the Fewer Fees, Better Services Act, 2022 comes into force.

3.  The day this Regulation is filed.

(3) Section 8 comes into force on the later of the day section 3 of Schedule 2 (Building Ontario Businesses Initiative Act, 2022) to the Fewer Fees, Better Services Act, 2022 comes into force and the day this Regulation is filed.

 

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