The Quebec Government enacted the Act respecting contracting by public bodies1 that sets out the requirements and conditions that govern public procurement of goods and services such as construction contracts2, government concession contracts3, service4 and supply5 contracts.
The Act itself had been in effect for some time and was, in the wake of the corruption revelations from the Charbonneau Commission6, amended by the enactment of the Integrity in Public Contracts Act7 by adding a qualification regime for any contractors, service providers or suppliers interested in contracting with public entities. In effect, the regime renders any such contractor convicted of a specified offence or offences8 ineligible for public contracts9.
Any such contractor is listed in a dedicated register maintained by the Government10. Any contractor convicted of a listed offence must stop the performance of any ongoing contract, subject to the public bodies’ right to seek an authorization to continue the performance of the contract11 that is ongoing. An ineligible contractor is also barred from bidding on any future public contracts. The period of his ineligibility varies in length, but cannot exceed five years, depending on the nature of the offence for which he was convicted12.
The regime was implemented initially for those public contracts of $40 million or more. The effect of this relatively high monetary threshold was to render a relatively limited number13 of contractors subject to its application in that it concerned mostly large contractors and/or service providers who were interested or had the capacity to carry out project of that size.
The Quebec Government has now lowered the monetary threshold to $10 million14 thereby capturing a larger array of public projects and thereby casting a much larger net by rendering a larger number of contractors subject to the regime15.
This regime has created a great deal of uncertainty in the provincial procurement sphere as its practical workings have and, in large measure, are still being worked out. The manner in which the Autorité des marchés financiers and the Courts will deal with the application and workings of the regime will hopefully, over time, provide some additional guidance and certainty.