Quebec Public Procurement – New Procurement Authority Ramps Up

On July 25, 2018, Denis Gallant took office as the first president and chief executive officer of the Autorité des marchés publics (AMP), Quebec’s central public procurement supervisory body, following his appointment by the National Assembly. This entry into office comes almost eight months after the adoption An Act to facilitate oversight of public bodies’ contracts and to establish the Autorité des marchés publics (Bill 108) on December 1, 2017, which created the AMP.

The AMP is one of the first authority of its kind in Canada and globally. The AMP’s jurisdiction is similar to that of the Bureau de l’inspecteur général de la Ville de Montréal (BIG), but more extensive. The BIG was created in 2014 to oversee the public procurement processes and contracts in Montréal. Until recently and since the BIG’s creation, Mr. Gallant served as inspector general of Montréal.

This entry into office of Mr. Gallant as first president and chief executive officer of the AMP is key since certain powers of the AMP will only take effect within a certain time following such entry into office. For example, six months into Mr. Gallant’s term (on January 25, 2019), the AMP will have the power to issue orders and make recommendations to a public body, directing it to amend or cancel a public call for tenders, or to suspend or cancel a public contract. Other functions of the AMP will take effect 10 months after Mr. Gallant’s appointment (that is, on May 25, 2019), including responsibilities related to the processing of complaints, communication of information and disclosure of wrongdoings.

THE AMP IN A NUTSHELL

The creation of the AMP, a neutral and independent public procurement supervisory and regulatory authority, was one of the key recommendations of the Commission of Inquiry on the Awarding and Management of Public Contracts in the Construction Industry (CICI), better known as the Charbonneau Commission, in its November 2015 report. According to recommendation no.1 of the CICI’s report, “[translation] the creation of a provincial public procurement authority is the appropriate response to ensure process integrity,” in particular by centralizing expertise, giving it public procurement monitoring powers and powers of intervention and mandating it to support public bodies in managing contracts.

Bill 108 was adopted in response to this recommendation. Bill 108 also incorporates certain provisions of the free trade agreements to which Quebec public bodies are subject (for example, the Canadian Free Trade Agreement) with respect to receiving and reviewing complaints filed by bidders.

As a central authority, the AMP’s main duty is to monitor the integrity in public procurement processes and the application of certain provisions of the legal framework governing public contracts in Quebec, the centerpiece of which is the Act respecting contracting by public bodies (ACPB). Its monitoring duties apply to all public bodies, including municipalities, subject to certain exceptions (for example, the BIG, which continues to carry out its mandate in Montréal), and any other contractual process determined by the government.

Starting January 25, 2019, the AMP will also be maintaining: (i) the register of enterprises ineligible for public contracts (or subcontracts), currently kept up to date by the Conseil du trésor; and (ii) the register of enterprises authorized to enter into public contracts (or subcontracts), currently managed by the Autorité des marchés financiers.

The AMP will work closely with the Conseil du trésor to ensure the integrity and sound management of public procurement processes as well as with the other competent public stakeholders.

Lastly, the public bodies themselves will have to ensure that, prior to May 25, 2019, an administrative process is in place to receive and analyze complaints respecting their public procurement processes.

IMPLICATIONS FOR BUSINESSES

Until all of the AMP’s powers and duties to come into effect, the Autorité des marchés financiers will continue to be responsible for the application of the legal framework governing the awarding of public contracts and to manage requests for authorization to enter into a contract or subcontract with a public body (including renewals). It should be noted that Bill 108 now provides for a period during which enterprises are prohibited from entering into a contract with a public body if they withdraw an application for an authorization.

In 2019, enterprises will have access to a new extrajudicial system to formulate complaints with the AMP in the event that they are dissatisfied with, or if there are to allege any irregularities, in public procurement process. Complaints filed with the AMP must be preceded by a complaint to the public body responsible for the allegedly irregular procurement process (with certain exceptions).

Finally, and although not directly related to the AMP, it is worth noting that bidders are now allowed to electronically submit their bids for calls for tenders published in the electronic public call for tenders system (SEAO). However, for the time being, this option is only available for public contracts awarded solely on the basis of the lowest price. This initiative follows a pilot project during which a simple and safe electronic solution to submit bids was successfully developed.

For further information, please contact:

Clémentine Sallée                514-982-4077
Liviu Kaufman                      514-982-5032

or any other member of our Procurement group.

Blakes and Blakes Business Class communications are intended for informational purposes only and do not constitute legal advice or an opinion on any issue.

We would be pleased to provide additional details or advice about specific situations if desired.

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