Contracting Policy Notice 1997-8



Section 10. Co-operation Agreement between the Inuvialuit Regional Corporation and the Department of National Defence Concerning the Restoration and Clean-Up of DEW sites within the Inuvialuit Settlement Region - February 2, 1996

1.0 DEFINITIONS

Inuvialuit

Means those people known as Inuvialuit who are beneficiaries under the Inuvialuit Final Agreement and, where the context requires, includes the Inuvialuit Regional Corporation, the Inuvialuit Development Corporation (IDC), the Inuvialuit Community Corporations and any other corporations or trusts controlled by the Inuvialuit that may be established by or pursuant or subsequent to the IFA and for the purposes of the Co-operation Agreement are represented by the Chairman of the Inuvialuit Regional Corporation.

Inuvialuit Business(es)

Means corporations, joint ventures, partnerships or proprietorships that are 50% or more owned by the Inuvialuit.

Inuvialuit Settlement Region

Means that portion of the Northwest Territories, Yukon Territory and adjacent offshore area shown in Annex A and described in Annex A-I of the Inuvialuit Final Agreement.

2.0 GENERAL

2.1 Precedents

This Co-operation Agreement specifically relates to co-operation between DND and the Inuvialuit for the restoration and clean-up of the DEW Sites, and related activities, occurring at all site located within the ISR. The DEW Sites which are within the ISR are as follows:

  • BAR 1 - at/near Komakuk Beach
  • BAR 2 - at/near Shingle Point
  • BAR 3 - at/near Tuktoyaktuk
  • BAR 4 - at/near Nicholson Peninsula
  • PIN M - at/near Cape Parry
  • PIN 1 - at/near Clinton Point

This Agreement is not to be construed as a precedent for interpreting any federal government or military obligations pursuant to the IFA; neither is it a precedent for such activities occurring outside the ISR. For greater certainty, this Agreement including but not limited to the protocols and standards provided for in Schedule 1, shall not be construed as a precedent for any sites other than those listed above.

4.0 IMPLEMENTATION

4.1 Contractual Mechanism

  1. The Government of Canada Contracting Agency will include a term in all contracts for work, that the Contractor will comply with this Agreement and a term that the Contractor will ensure that any Subcontractors will also be bound by similar provisions, wherever applicable.
  2. DND will, where feasible and cost effective, arrange that the Work specified in each contract will, at a minimum, consists of the complete clean-up and restoration of at least one full DEW Site.

4.3 Inuvialuit Lands

All use of and access to Inuvialuit Lands by all Contractors and Subcontractors for the purposes of the Work will be subject to the IFA and the Rules where they are not inconsistent with the IFA and/or the legislation giving effect to the IFA. A letter between DND and the IRC is attached at Schedule 5 which provides further information concerning the arrangement agreed to between the Parties respecting DND's reservations on Inuvialuit lands listed on Annex 4 of the IFA.

4.7 Arbitration

The Inuvialuit and DND shall attempt to resolve any differences without recourse to third parties. However, should circumstances requires arbitration the following procedure will apply:

g) If the Inuvialuit and DND cannot agree on any question of fact (as opposed to a question of law or mixed law and fact) related to the interpretation, implementation , or operation of this Agreement, either Party can submit the disagreement to a determination by arbitration, in accordance with the procedures set out below.

h) The Arbitration proceedings shall be held in a location agreed upon by the Parties.

i) Within ten (10) days of a written demand of either Party to refer a dispute to arbitration under the provisions of paragraph 4.7a above, each Party shall name an arbitrator. The arbitrators shall then choose a third arbitrator who shall chair the Board. If the two arbitrators fail within ten (10) days from the date the last arbitrator was appointed to agree upon and appoint the third arbitrator, then upon written application by either Party such third independent arbitrator shall be appointed by a Judge of the Supreme Court of the Northwest Territories.

j) The Arbitration Board's procedures shall be determined by the Parties to the arbitration, subject to the following:

7) Unless the Parties to the arbitration otherwise agree, the procedure shall assure a right to at least one oral hearing before the Board said hearing to be held within 60 days of the Board being fully constituted under the provisions of the paragraph 4.7c above, as well as the opportunity to provide written submissions and rebuttal arguments.

8) Unless the Parties to the arbitration otherwise agree, the Board shall have jurisdiction to decide whether any Interested Party shall be invited or allowed to participate in the arbitration and if so what the rights and obligations of any such Interested Party shall be with respect to the participation of said Interested Party in the arbitration process.
9)
10) Unless the Parties to the arbitration otherwise agree, the Board shall render a decision within (30) days after the hearing or within such other period of time agreed to by the Parties to the arbitration. The Board's decision shall be based on the provision of the IFA and its implementing legislation as amended, this Agreement, all applicable Acts and Regulations, and on the arguments and submissions of the Parties. The decision shall be in writing and shall state the reasons on which it is based.

11) Unless the Parties to the arbitration otherwise agree, the Board's decision shall be final and binding on all Parties to the arbitration. However, any error of law and/or excess of jurisdiction on the part of the Board shall be subject to judicial review.

12) Unless the Parties to the arbitration otherwise agree, the proceedings as well as the report of the board shall be made public.

k) Each party reserves the right to resort to the courts in the case of a dispute over law or mixed law and fact.

l) Each party shall provide for remuneration and expenses of the arbitrator appointed by it. Each Party is responsible for their own costs in preparing for and including the costs of their witnesses and attending arbitration hearings. All other costs shall be shared equally shared by the Parties to this Agreement.

5.0 INUVIALUIT PARTICIPATION PLAN

5.1 Opportunities Planning

DND shall require in all project proposals and tenders an Inuvialuit Participation Plan which will include the type, level and value of Inuvialuit supplied goods and services, training and employment what will be solicited pursuant to the provisions outlined in clauses 6 and 7 of this Agreement and the location of offices and other facilities of the firms inside and outside of the region.

5.2

DND and the Inuvialuit will establish minimum levels of Inuvialuit Participation which must be achieved in all Contractor Inuvialuit Participation Plans. In order for a contractor's tender or proposal for Work to be considered compliant, the Contractor's Inuvialuit Participation Plan must meet the agreed upon minimum levels of Inuvialuit participation.

6.0 BUSINESS OPPORTUNITIES AND COMMITMENTS

The following reasonable measures to ensure Inuvialuit participation with respect to contracts and subcontracts awarded for the Work will be taken:

6.1 Business Opportunities and Procedures

DND and the IRC will identify and advise the Inuvialuit of actual and potential business opportunities arising from the Work, and facilitate Inuvialuit involvement in such activities by following the procedures set out in this paragraph.

  1. The IRC shall prepare and maintain a complete list of Inuvialuit Businesses which could provide services to DND, any Contractor or any Subcontractor. Such list shall contain a brief description of the equipment or services provided by the Business, the business experience, address and contact name.
  2. DND shall include as a term in all contracts between DND and a Contractor for Work that, where the Contractor intends to subcontract or procure goods for Work, the Contractor will first solicit bids from qualified businesses on the list of Inuvialuit Businesses referred to in paragraph 5.2. This process shall not limit other qualified Inuvialuit businesses from bidding as well. At the same time, solicitation documents shall also be provided to the IRC. DND and its Contractors shall be held blameless if qualified Inuvialuit Businesses were not solicited because their name did not appear on the list provided by the IRC.
  3. DND shall include as a term in all contracts between DND and a Contractor for Work that where, following a solicitation for bids, a qualified Inuvialuit Business(es) offer(s) a compliant and competitive bid within the time specified in the solicitation documents, and the Contractor decides to execute a contract for that work, the contract will be offered to an Inuvialuit Business. The length of time provided to Inuvialuit businesses to prepare a bid will take into consideration the size and complexity of the work being solicited. In any event, not less than fifteen (15) business days shall be provided for a bid response from the date the solicitation documents are delivered. The Contractor shall determine whether a bid is compliant and competitive and this decision is not subject to the arbitration procedures specified in this Agreement. If it has been determined that a bid response contains minor variances which cause it to be considered not technically compliant or not competitive, the company which submitted the bid will be provided an opportunities to clarify the scope of work and revise its bid accordingly (if required). However, if a Contractor repeatedly determines that Inuvialuit bids are non-compliant in a conscious effort to subvert the objective of this Agreement, the IRC shall have recourse to the Review Committee and if necessary paragraph 4(7) of this Agreement.
  4. If a sub-contract is not awarded pursuant to a solicitation within the ISR the Work shall be tendered in accordance with the Contractor's or the Subcontractor's policy.
  5. DND shall include as a term in all contracts between DND and a Contractor that if the above procedures relating to the award of sub-contracts have not been followed, or an Inuvialuit Business' offer has not been accepted, the Inuvialuit Business may request, and shall receive within 30 days, a written explanation setting out the reasons why the offer was not accepted. Subject to prior approval by the Inuvialuit Business, a copy of the explanation shall be provided to the IRC.
  6. If it is understood that business opportunities provided to the Inuvialuit under this section will be dependent upon these Businesses meeting the required standards and providing the capacity, capability and expertise to supply goods and services in a competitive manner.

6.2 Specific Business Opportunities

DND will include as a term in all contracts between DND and a Contractor for Work that the following specific business opportunities for the provision of goods and services associated with the Work shall be provided through the Contractor or Subcontractors as set out in the subclause hereunder. The Contractor will provide the companies, listed below, a length of time to prepare a bid which take into consideration the size and complexity of the work being solicited. In any event, not less than fifteen (15) calendar days shall be provided for a bid response from the date the solicitation documents are delivered. Where, following a solicitation for one of the services set out in this clause, the corresponding Inuvialuit Business has submitted a bid that is technically compliant, competitive and based on the lower of published tariffs (where applicable) or most favoured customer rates (where applicable), and the Contractor decides to execute a contract for that Work, the contract shall be offered to that Inuvialuit Business. If it has been determined that a bid response contains minor variances which cause it to be considered not technically compliant or not competitive, the company which submitted the bid will be provided an opportunity to clarify the scope of work and revise its bid accordingly (if required).

  1. Aklak Air will have the first opportunity to bid on all contracts for the transportation of personnel and freight by fixed wing aircraft for flights originating and terminating within the ISR or Inuvik;
  2. The Inuvialuit Projects Inc./Canadian Helicopters Ltd. Joint Venture will have the first opportunity to bid on all contracts for the transportation of personnel and freight by rotary wing aircraft for flights originating and terminating within the ISR or Inuvik.
  3. NTCL will have the first opportunity to bid on all contracts for marine transportation and barging of equipment and supplies;
  4. Inuvialuit Project Inc. will have the first opportunity to bid on all contracts for camp facilities which are required in addition to any DND owned camp facilities presently located at DEW sites.
  5. Stanton Distributing will have the first opportunity to bid on all contracts for groceries and foodstuffs required in association with any camp facilities provided for the Work; and

Granular Material

Contractors and Subcontractors shall obtain gravel from the Inuvialuit for all sites on Inuvialuit lands. The specific gravel requirements will be determined by the Contractors and Subcontractors. The gravel required in excess of gravel which has been already quarried and used for other purposes (eg. Runways) at the time of the signing of this Agreement shall be provided by the IDC in accordance with Schedule 3. All other granular material will be procured in accordance with the procedures outlined in Clause 6.1.

6.4 Disposal of Tier II Soils

  1. Subject to 6.4b, DND will dispose of Tier II sols from DEW Line sites at a disposal site outside the ISR. NTCL will provide the marine transportation and barging of the soils from Nicholson Peninsula, Cape Parry and Shingle Point to Hay River in accordance with the prices set out in Schedule 4. Transportation rates for soils from the remaining DEW Line sites in the ISR will be established six months prior to soil transportation from these sites and will reflect a similar discount over published tariffs as is the case for Nicholson Peninsula and Cape Parry.
  2. Should it no longer be economical to dispose of the Tier II solid outside the ISR, or, it is no longer possible to dispose of the soils outside the ISR, DND reserves the right to pursue, through the applicable processes, approval for the construction of a Northern Disposal Facility. DND recognises that the IRC is opposed to the construction of a Northern Disposal Facility within the ISR at the time of the signing of this Agreement.

8.0 MISCELLANEOUS

8.2 Notices

d) Where any Party is obliged or entitled to give any notice, request, approval, demand, consent, direction or other communication (hereinafter collectively called "Notice") to the other Party, such Party shall first communicate the substance thereof personally or by telephone, as expeditiously as possible, but Notice shall not be sufficiently given until sent in writing to the addressees at the address below. Any Notice may be delivered personally or sent by registered mail or telefacsimile and will be effective upon receipt by the addressee.

e) Notices to DND shall be sent to:

Director General Environment
National Defence Headquarters
101 Colonel By Drive
Ottawa, Canada K1A 0K2

Notices to the IRC shall be sent to:

Chairman
Inuvialuit Regional Corporation
Bob 2120
Inuvik NW X0E 0T0

 



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