This Process shall apply to Contractors and Consultants.  Reference to Contractors shall also refer to Consultants.  All capitalized terms unless otherwise defined in this Process shall have the meaning as set out in the Contract Documents.

In accordance with the General Condition entitled ‘Contractor Work Performance Rating’ (“Contractor Work Performance Rating General Condition”), the performance of the Contractor in performing work for the TTC or any other entity as set out in the Contractor Work Performance Rating General Condition may, at the sole discretion of the TTC, be considered in the evaluation of future bids from the Contractor. 

A. REQUEST FOR A MEETING OR APPEAL OF THE UNSATISFACTORY CPR 

If a Contractor Performance Review (“CPR”) is issued with an “unsatisfactory” rating to the Contractor, the TTC will request (“TTC Request”) a meeting to address the unsatisfactory performance issues (“CPR Meeting”).  The TTC, at its sole discretion, may also request that the Contractor provide a detailed and measurable plan of action (“Action Plan”) with respect to improving performance of the Contract.  TTC may, at its sole discretion, require that the Action Plan be provided prior to the CPR Meeting, at the CPR Meeting or after the CPR Meeting.

Within 5 Business Days of the Contractor receiving the TTC Request, the Contractor shall accept the CPR Meeting (and submission of an Action Plan, if requested by the TTC) or, as an alternative, the Contractor may elect to appeal the unsatisfactory CPR.  If the Contractor elects to accept the CPR Meeting, the Appeal Process as set out in this Process shall no longer apply.

Notwithstanding any other rights of the TTC as set out in the Contract Documents, in the event of:  (1) the Contractor not providing a response to the TTC Request within 5 Business Days, (2) the Contractor’s failure to provide an Action Plan that is acceptable to the TTC in its sole discretion, as requested by the TTC, or (3) the failure of the Contractor to attend the CPR Meeting, if the Contractor has so elected to have the CPR Meeting, the TTC may, in its sole discretion, restrict the Contractor from being awarded any further contracts for a period of time.   

Upon notification from the Contractor that it wishes to appeal the unsatisfactory CPR, the Appeal Process as set out below shall apply.

B. APPEAL PROCESS FOR UNSATISFACTORY CPR

A Contractor may elect to exercise its right to appeal an unsatisfactory CPR. 

The Contractor’s request for an appeal must be provided in writing to the TTC within the timelines noted in this Process.  A Contractor’s request to appeal will promptly be forwarded by the TTC to the Appeal Board.  The Appeal Board shall be comprised of TTC senior management representatives. 

An Appeal Board meeting will be arranged within 10 Business Days of receipt of the appeal request or subject to the availability of the Appeal Board members. Until such time that the Contractor advises their intent to appeal, the Appeal Board members will not be involved in the CPR process.  Both the Contractor and the team representing TTC shall submit a copy of documentation to be presented, including relevant supporting information, to the Appeal Board, three (3) working days prior to the Appeal date. The Contractor and the TTC team shall each have 30 minutes to present their position(s) and supporting evidence, for review and consideration by the Appeal Board.

A decision by the Appeal Board is considered final and will be issued within 5 Business Days of the appeal meeting date.

The Appeal Board’s decision will indicate one of the following:

a) Concurrence with the Contractor presented position, or
b) Concurrence with the TTC presented position including consequences and/or restrictions (e.g. restrict bidding/award on TTC work)

NOTE:   If any of the deadlines with respect to the Contractor noted above and/or noted in correspondence to the Contractor are not met; the right to appeal may be lost.

C. CPR MEETING AND SUBMISSION OF ACCEPTABLE ACTION PLAN (if applicable)

If the Contractor accepts the CPR Meeting, the TTC shall arrange the CPR Meeting as soon as possible.  

If the Contractor accepts the CPR Meeting and the TTC requests an Action Plan from the Contractor, the Action Plan shall be submitted within the timeframe set out by the TTC (minimum of 5 Business Days).  The submitted Action Plan shall be reviewed for completeness by the TTC and the Contractor will be notified in writing, within 5 Business Days, whether it is acceptable and if it is, to proceed to implement the Action Plan.  If the TTC requires additional time to review the submitted Action Plan, it shall so advise the Contractor, in writing, and set out an amended timeframe for completing its review.

If the TTC determines, in its sole discretion, that the Contractor’s submitted Action Plan is not acceptable, the TTC shall notify the Contractor in writing that the Action Plan is not acceptable (“Notice of Unacceptable Action Plan”) and the TTC may, in its sole discretion, restrict the Contractor from being awarded any further contracts for a period of time or as otherwise set out in the Contract.

D.  IMPLEMENTING ACTION PLAN

If a satisfactory performance of the Action Plan is achieved as determined by TTC in its sole discretion: TTC to confirm by letter (or a further satisfactory CPR) that performance concerns have been addressed and an annual CPR will be performed thereafter.  Note: issuance of a letter by the TTC that the Contractor has satisfactorily performed the Action Plan will not result in the previously issued unsatisfactory CPR being amended.

If the Contractor, in any way, fails to implement or carry out the obligations as set out in the Action Plan, which has been accepted by the TTC, the Contractor shall be notified of such non-adherence to the Action Plan (“Non-Adherence to the Action Plan”) and the TTC may, in its sole discretion, restrict the Contractor from being awarded any further contracts for a period of time.