New public procurement complaints process in Québec

A new procurement complaints process overseen by the Autorité des marchés publics (Autorité) will enter into force on May 25. This process will allow for the consolidated and uniform treatment of bid protests arising in the course of public sector procurements in Québec.

What you need to know

  • As of May 25, interested persons will be able to file complaints with the Autorité in relation to a public body’s decision in tendering and awarding public contracts.
  • The introduction of the process offers a more effective, transparent, and centralized manner of dealing with procurement issues.
  • The complaints process is subject to strict timelines and will require aggrieved parties to act swiftly in order to obtain redress with the Autorité.
  • The Autorité has broad remedial powers, which include:
    • ordering a public body to amend its tender documents or cancel the public call for tenders;
    • ordering a public body not to follow up on its intention to enter into a public contract by mutual agreement;
    • ordering the public body to call on an independent process auditor;
    • designating an independent person to act as member of a selection committee; and
    • suspending the performance of a public contract or canceling it.
  • In light of the new process, businesses participating in procurement processes should be aware of their rights and the relevant deadlines to file complaints and procuring entities subject to the new regime should ensure their procurement practices are compliant with all legal requirements.

What is the autorité des marchés publics?

The Autorité des marchés publics was created through the enactment of Bill 108, An Act to facilitate oversight of public bodies’ contracts and to establish the Autorité des marchés publics on December 1, 2017. This Bill was the Québec National Assembly’s answer to the Commission of Inquiry on the Awarding and Management of Public Contracts in the Construction Industry, better known as the Charbonneau Commission. The creation of an independent body that would ensure the transparency and integrity of procurement processes in Québec was the Commission’s first recommendation.

The Autorité’s mission is to supervise all public contracts in Québec, including tendering and awarding processes, and to ensure their compliance with another key act, the Act respecting contracting by public bodies. The Autorité represents the creation of new administrative recourses to suppliers who partake in procurement processes, but also plays a key role in the continuous monitoring of public contracts and their performance.

How will the complaints process work?

Who is eligible, and for which contracts?

Any interested person or partnership, or their representative, may file a complaint with the Autorité regarding the tendering or awarding process for a public contract.1 The Autorité may also examine such contracts on its own initiative or at the request of the Chair of the Conseil du trésor or the minister responsible for municipal affairs.2

The scope of contracts for which the Autorité is responsible is quite large, and reflects the desire that the Autorité have the full latitude it requires in order to accomplish its mission.3 The Contracting Act defines the contracts that are subject to the Autorité’s oversight.4 These include supply contracts, construction contracts, and service contracts where public funds are spent, as well as PPP contracts. Of note, the Autorité also has powers in respect of contracts entered into by hospitals, schools, universities and municipal bodies.

Public contracts typically follow one of two processes: a public call for tenders or mutual agreement.

In a tendering process, the relevant public body issues a call for tenders published on an electronic tendering system and assigns the contract to the lowest bidder that satisfies all criteria as set out in the tender documents.5

In an awarding process, the public body does not issue a call for tenders, but rather enters into the contract by mutual agreement with the contractor. Public bodies may only use this sole source process in limited circumstances, such as an emergency that threatens human safety or property, where there is only one possible supplier or where the public body considers it will be able to prove that a public call for tenders would not serve the public interest given the object of the contract concerned.6 In these cases, the public body is required to publish a notice of intention at least 15 days before it enters into the contract. This notice sets out the nature of the contract, the name of the contractor, the reason for entering into the contract by mutual agreement, and other details.7 An interested party may then express interest to the public body in executing the contract. The public body then decides whether or not it maintains its intention and notifies the party of this decision at least seven days before the projected date for the contract’s conclusion.8

What can a supplier complain about?

An Act respecting the Autorité des marchés publics (AMP Act) provides three main bases for complaints:

  • In the context of a tendering process, where tender documents contain conditions which do not ensure the honest and fair treatment of tenderers, do not allow tenderers to compete despite their qualifications, or are otherwise not compliant with the normative framework;9
  • In the context of an awarding process, where after the supplier has expressed interest in carrying out the contract to the public body that published a notice of intention, the supplier disagrees with the public body’s decision to maintain its intention;10 and
  • In the context of an awarding process, where the notice of intention was not published in the electronic tendering system.11

Moreover, a person can provide the Autorité with information on an anonymous basis about the tendering and performance of a contract where it appears the public body is not in compliance with the normative framework.12

What can the Autorité do?

The Autorité has broad remedial and investigative powers allowing it to intervene in a variety of ways where public contracts are concerned. Once an audit or investigation is concluded, the Autorité may do any of the following.

  • Order that the tender documents be amended.
  • Order that the public call for tenders be cancelled.
  • Order the public body not to follow up on its intention to enter into a public contract by mutual agreement.
  • Order the public body to call on an independent process auditor.
  • Designate an independent person to act as member of a selection committee.
  • Review and approve the composition of a selection committee.
  • Suspend the performance of any public contract or cancel such a contract.13

The Autorité also has powers allowing it to ensure compliance with any orders it has made, namely to require information necessary to its monitoring function or to be informed of steps taken to follow up on its recommendations.14

How does a supplier prepare a complaint?

The complaints process is administered through an electronic form which will become available shortly on the Autorité’s website. Deadlines for filing complaints are short so swift and diligent action will be necessary.

The first step for an aggrieved interested person, regardless whether the contract is concluded through a tendering or awarding process, is to bring its complaint to the attention of the relevant public body. This step is necessary before resorting to the Autorité’s complaints process.15

Where a person is not satisfied with the public body’s decision, it must file its complaint to the Autorité no later than three days after receiving the public body’s decision.16 These deadlines are adjusted for cases where the public body does not issue a decision before the closing date for the tendering process, or the projected contract date, in cases of contracts by mutual agreement.17

It is important to note that the Autorité will not process a complaint if a judicial remedy is already being sought.18

Conclusion

These new provisions represent an important new tool for participants in public procurement processes. They ensure a uniform treatment of complaints across industries and consolidate the process for many public bodies in Québec. Businesses should be sure to keep them close at hand when participating in tendering processes and public bodies should ensure that their procurement practices are compliant with the requirements of the Contracting Act.

_________________________

1 An Act respecting the Autorité des marchés publics, c. A-33.2.1, sub section 37-43.

2 AMP Act, section 53.

3 Québec, Assemblée Nationale, Journal des débats, 41st Leg, 1st Sess, Vol 44, No 212 (23 November 2016) at 12952 (Carlos Laitão).

4 Contracting Act, sub section 3-4.

5 Contracting Act, section 11.

6 Contracting Act, section 13.

7 Contracting Act, section 13.1.

8 Contracting Act, section 13.2.

9 AMP Act, sub section 37, 39. The notion of “normative framework” means the rules that apply to a particular body in procurement processes beyond those which are enumerated.

10 AMP Act, sub section 38-39.

11 AMP Act, section 42.

12 AMP Act, section 56 ff.

13 AMP Act, section 29.

14 AMP Act, section 34-35.

15 AMP Act, section 46(5).

16 AMP Act, sub section 37-38.

17 AMP Act, sub section 39-41.

18 AMP Act, section 46(7).

To discuss these issues, please contact the author(s).

This publication is a general discussion of certain legal and related developments and should not be relied upon as legal advice. If you require legal advice, we would be pleased to discuss the issues in this publication with you, in the context of your particular circumstances.

For permission to republish this or any other publication, contact Janelle Weed.

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