Further to our section on the coming into force of certain provisions of the (the "Act"), new provisions implementing other recommendations of the Commission of Inquiry on the Granting and Management of Contracts in the construction industry (CEIC), commonly known as the Charbonneau Commission, entered into force on 25 May 2019. Public bodies must now have a procedure for the receipt and examination of complaints made in connection with the award or award of a contract.
Complaint handling system
The Act establishes a new complaints management system for public bodies, both with respect to competitive bidding processes and over-the-counter contracts.
Prior to May 25, 2019, any interested person who felt that the public bidding or contracting process did not meet the prescribed requirements, felt aggrieved or disadvantaged by the process, or detected an anomaly, relatively limited recourse.
Before the contract was awarded, the person could:
- contact the contact person identified in the solicitation document or the contact person of the public body or resort to the complaint mechanism provided by the public body and, in the absence of follow-up, the person must communicate in writing with the Treasury Board Secretariat;
- put the public body on notice before the deadline for the receipt of tenders in order to obtain the desired adjustment, for example an amendment to the tender documents; or
- take legal action to obtain an injunction ordering the organization to modify the tender documents or to prevent the award of the contract to an ineligible / non-compliant company.
After the award of the contract, the person could bring an action for damages to be compensated for his loss of earnings, due to anomalies in the process of bidding or awarding.
As of May 25, 2019, a formal complaint process will be made available to interested parties. This process is divided into two stages. The first is a complaint lodged with the public body; the second, with the Public Procurement Authority (" AMP ").
The MPA may, on the basis of any complaint received, investigate and make such orders or recommendations as it deems necessary. In the case of complaints, the GPA has the same powers as when it seized automatically an irregularity in the process.
Measures prior to the implementation of the complaints system
To ensure the proper functioning of this process, the Act requires public bodies to have a procedure for the fair treatment of complaints made to them in the context of the award or award of a public contract. To this end, any procedure adopted by a public body must be published on its website and must provide mechanisms for receiving and examining complaints.
As part of an award process, ie the awarding of a private contract, the public body must publish a notice of intention prior to the conclusion of certain contracts of this kind on the electronic system. Government of Quebec (" SEAO ") tender , in order to allow companies that are able to carry out the contract to demonstrate their ability to meet the needs of the public body.
In the context of a tendering process, ie the awarding of a contract by public invitation to tender, the public body making the public call for tenders must send a notice to that effect to the SEAO. The notice forms an integral part of the tender documents and formalises the complaint procedure by requiring the organization to enter the deadline for the receipt of complaints.
Complaints for public tenders (tendering process)
Only a company or group of companies interested in participating in the bidding process (or its representative) can make a complaint about an open call for tenders.
The deadline for the receipt of complaints is determined by adding a period corresponding to half the deadline for the receipt of tenders to the date of the call for tenders, but must not be less than 10 days. For example, if the date of the call for tenders is November 15 and the bid closing date is December 15, the deadline for receipt of complaints will be December 1.
The complainant must first apply directly to the public body if he considers that the public tender documents:
- provide conditions that do not ensure fair and equitable treatment of competitors;
- do not allow competitors to participate even though they are qualified to meet the expressed needs; or
- do not comply with the applicable normative framework.
To be admissible, the complaint must be sent electronically to the person identified in the procedure published by the organization or, failing that, to the head of the public body, using a form determined by the GPA.
The public body has up to three days before the deadline for submitting bids to send a response to the complainant. In case of disagreement with the decision of the public body, the complainant will have three days to file a complaint with the GPA.
In the absence of a response from the public body within the time limit, the complainant will have a window of three days before the deadline for receipt of tenders to file a complaint with the GPA.
Exceptionally, the complainant may apply directly to the MPA if the public body has modified the tender documents within the two-day period preceding the deadline for receipt of complaints.
Complaints for OTC contracts (award process)
The public body must, at least 15 days before concluding an agreement by mutual agreement, publish in the SEAO a notice of intent. This period allows any company to express its interest in carrying out this contract.
Interested companies have 5 days before the date of conclusion of the contract to send an opinion of interest electronically. The public body must send its decision at least seven days before the expected date of conclusion of the contract, postponing the scheduled date of conclusion if necessary and informing the company of its right to lodge a complaint and the time limits involved.
In case of disagreement with the decision, the company will have three days from receipt of the decision to file a complaint to the GPA. In the absence of a response from the public body three days before the expected date of conclusion of the contract, the company will have until the day before the latter to make a complaint to the GPA. In the absence of publication of a Notice of Intent to the SEAO required by the Act, the company may file a complaint directly to the GPA.
Powers and functions of the MPA following a complaint
The AMP will use its investigative functions if it deems it necessary to render a decision. It will hear the parties concerned according to a procedure it will publish on its website. It has a period of 10 days following the receipt of comments from the public body to make its decision. If necessary, it may postpone the submission of bids to a new deadline within the bidding process. The publication of the decision follows substantially the same rules promulgated in January, as described in our article .
A public contract concluded as a result of a tendering or awarding process continued by a public body is before the Authority has rendered its decision in respect of a complaint or in contravention of a variation order tender documents are terminated automatically from the receipt by the body and its contractor of a notification from the MPA to this effect.
A contract concluded by mutual agreement by a public body without having been the subject of the publication of the notice of intention provided by law is terminated automatically from the receipt by the organization and its contractor of a notification from the MPA for this purpose. It should be noted that the powers of order and the provisions referring to termination of rights do not apply in the case of contracts concluded with municipal public bodies.
The Office of the Inspector General takes over the functions and powers of the MPA with respect to the City of Montreal and certain organizations directly referred to in the Act, thereby giving the Quebec metropolis some autonomy.
Disclosure of Wrongdoing
As of May 25, 2019, the disclosure of wrongdoing involving the conformity of the contractual management of a public body with the normative framework will no longer be with the Québec Ombudsman but with the MPA. Any person may therefore communicate to the GPA information relating to a process for awarding or awarding a public contract or for the performance of such a contract. The Protecteur du citoyen's legal service remains accessible.
The provisions of this section disregard privacy laws as well as any other communication restrictions such as the duty of confidentiality or loyalty to one's employer or client. Only professional secrecy between the lawyer or notary and his client and certain recent documents of the Executive Council are exempt.
We are of the opinion that anyone interested in the coming into force of the Act will have an interest in consulting the professionals of the firm in order to know the implications of this new Act on its activities.