Representations

A representation is a statement made expressly or by implication, including by conduct. The CanadaBuys Supply Manual glossary defines the term this way, and it applies to what a supplier says or does in a bid as much as to what it writes in a contract. The glossary uses the singular form, "Representation," and "representations" is simply its plural.

In contract law, a representation is a statement made by one contracting party to the other, before or when entering into the contract, concerning the contract or a related matter. In procurement contracts, the term usually appears in the pairing "representations and warranties." These are statements the contractor makes and legally confirms to be true. For a supplier, the practical point is simple: what you say in a bid can become a binding commitment once the contract is awarded.

How the CanadaBuys Supply Manual defines a representation

The CanadaBuys Supply Manual glossary gives two connected meanings. The general meaning is a statement made expressly or by implication, including by conduct. The contract-law meaning is narrower: a statement by one party to another, made before or at contract formation, about the contract or a related matter.

Two features of this definition matter to bid teams. First, a representation does not have to be written as a formal promise. A statement can be implied, and conduct can make one. Second, timing is part of the definition. A representation is made before or when the contract is entered into, which is the period in which a bid is prepared, submitted and evaluated.

The PSPC "Representations and warranties" clause

Public Services and Procurement Canada (PSPC) uses a clause titled "Representations and warranties" in its Task-Based Services Supply Arrangement and the resulting contracts. The clause covers statements the contractor makes about:

• its own experience and expertise;
• the experience and expertise of its proposed resources;
• the content of its bid and its task-authorization proposals, or its resource proposals where task authorizations do not apply; and
• the qualifications, skills, expertise and experience of the contractor, its resources and its subcontractors.

Under the clause, the contractor represents and warrants that these statements are true. The contractor also acknowledges that Canada relied on them when awarding the contract and authorizing work. The obligation continues after award: the contractor, its resources and its subcontractors must have and maintain the skills, qualifications, expertise and experience needed to perform the work throughout the contract period.

Representations in NATO general terms and conditions

NATO uses the same concept in its procurement contracts. The NATO general terms and conditions state that the supplier "warrants, represents and undertakes" obligations concerning supplies and services, including conformity of supplies and proper performance of services.

NATO's competitive-procurement terms also require representations and warranties that:

• prices were arrived at independently;
• the supplier did not attempt to restrict competition; and
• the supplier did not offer improper gratuities to NATO personnel or try to influence them improperly.

NATO states that common-funded procurement is governed by its Procurement Policy for NATO Common Funding and its Procedure for NATO Competitive Procurement. Details are on the NATO business and project opportunities page. Canadian suppliers bidding on NATO work should read the contract terms attached to each solicitation.

What representations mean for a supplier bidding on Canadian public contracts

Treat every factual statement in a bid as a commitment. Where a clause like PSPC's applies, statements about your experience, your named resources and your subcontractors are statements the buyer relies on when it awards the contract, and you confirm them as true.

• Verify each claim about experience and qualifications before you submit.
• Confirm that every proposed resource and subcontractor actually holds the stated skills and credentials.
• Plan to keep those qualifications in place for the full contract period, including when you substitute resources.
• On NATO bids, make sure your pricing is independently derived and that your conduct toward NATO personnel and competitors is clean.
• Read the representations and warranties clause in each solicitation, since contract wording differs by buyer.