Managing Contracts under the foip act
Software Licensing Agreements
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- Access and privacy considerations
- 2.5 Fee-for-Service Contracts
2.4
Under a software licensing agreement, a licensee acquires from the publisher the right to use a piece of software. Title to or ownership of the underlying intellectual property in the software is not typically transferred to the licensee.
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4.2 |
2.5
Fee-for-Service Contracts
A “fee-for-service contract” is used when the Government retains an individual or a company to provide a specific service. This is commonly the case when, for example, a department engages a consultant to provide professional services for a relatively short period of time, or on an ad hoc basis. The contractor may enter into the contract as an individual, a corporation or as a professional corporation. Some of the more common services performed under a fee-for-service contract include conducting research and preparing reports, project management, training, and organizing conferences and events.
The contract typically establishes the services to be provided, who may provide those services, time lines, fees, payment, insurance, and indemnification. The contract may also contain provisions relating to the custody and control of records, ownership of and copyright in the records created under the contract, and the confidentiality of information transferred, collected or created by the contractor.
Access and privacy considerations
The Public Service Act distinguishes between a “fee-for-service” contract and employment. This distinction is the subject of a Corporate Human Resources directive (available on the Corporate Human Resources website), which sets out the tests used to determine whether an employment relationship exists. This is significant for matters such as income tax and liability. The Financial Administration Act uses the term “personal service contractor” to refer to a person providing services under a fee-for-service kind of contractual relationship. Each of these Acts provides for persons other than government employees to perform services for or on behalf of the Government, and establishes certain powers, duties and functions with respect to these persons.
The FOIP Act adopts a more extensive definition of the term “employee” than either of these other Acts; the definition includes persons other than persons appointed under the Public Service Act to perform services for or on behalf of government. This is because the FOIP Act is concerned with establishing accountability for information in the custody or control of a public body.
Section 1(e) of the FOIP Act defines “employee” as including a person who performs a service for or on behalf of the public body under a contract or agency relationship with the public body. This means that the provisions in the FOIP Act that limit the actions of a public body employee may also limit the actions of a contractor providing services on behalf of the public body. For greater certainty, a fee-for-service contract must limit the actions of the contractor by specifically stating rules the contractor must follow regarding collection, use, disclosure, protection, retention and destruction of the relevant records. The contract should also specify that the relevant records are under the control of the public body and establish the responsibilities of the contractor regarding access requests and correction of personal information requests.
Particular care should be taken in defining the contractor’s responsibilities and obligations when the contractor will be handling personal information on behalf of the public body. These contracts require a greater level of detail than contracts that do not involve personal information, including specification of the type of physical protection to be used in the contractor’s office (including a home office), the methods for transmitting data between the contractor and the public body and the limitations on use and disclosure of the information by the contractor. If a contractor is providing professional services to individuals, such as psychological, counselling or mediation services, the contract should make it very clear which records created by the contractor will be considered to be under the control of the public body.
Subcontractors of the contractor may be considered “employees” within the definition of the FOIP Act for certain purposes (for example, the “whistleblower” protection provisions in section 82). However, if the public body wishes to ensure that the subcontractor performs in accordance with the access and privacy rules that apply to the contractor, the public body must provide for this in its contract with the primary contractor.
The subcontractor may also be subject to private-sector privacy legislation in respect of records containing personal information that are in its custody or under its control. It is important, therefore, that the subcontractor clearly understand which records remain within the control of the public body and are subject to the FOIP Act.
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Related sections of this Guide |
Chapter |
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1.2 |
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4.4 |
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5.5 |
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5.7 6.3; esp. cl. R–S |
documents -> Privacy Impact Assessment (pia) Questionnaire to assess the protection of privacy as per Part 2 of the Freedom of Information and Protection of Privacy Act (foip act) pia: {pia name or Number}
foip -> Ms. Sharon Pollyck Mgr of Leg. Serv. & Corp. Comm. City of Airdrie 400 Main Street se
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