January 25 marked the beginning of the official operations of the Autorité des marchés publics, the new entity responsible for overseeing and managing public contracts between enterprises and Quebec government entities.
January 25 marked the beginning of the official operations of the Autorité des marchés publics, the new entity responsible for overseeing and managing public contracts between enterprises and Quebec government entities. In addition to taking over authorization powers under the regime from the Autorité des marchés financiers, the AMP will also be in charge of ensuring compliance with the adjudicating and awarding processes and handling complaints related to these processes. This article will address the main functions of this body, with an emphasis on the new powers granted to it as Quebec’s new integrity watchdog.
The importance of public contracts in Quebec is not subject to debate; in 2018 alone, the amounts awarded for these contracts totalled more than $14 billion. About 289 public bodies are subject to the act respecting contracting by public bodies, which provides for the most important characteristics of the public procurement process and aims to ensure the upright distribution of public funds.
The Integrity in Public Contracts Act adopted by the Quebec legislature on Dec. 7, 2012 brought about a major change in the area of public contracts by requiring that any enterprise wishing to enter into a contract with a public body obtain prior authorization. The responsibility for granting this authorization was given to the AMF, the financial sector regulator, which had broad discretion to determine whether an enterprise met the required standard; i.e., the “high standards of integrity that the public is entitled to expect from a party to a public contract or subcontract.”
Nearly two years after the publication of the Charbonneau Commission Report, the Quebec government finally enacted its first recommendation, with the passing of Bill 108, An Act to facilitate oversight of public bodies’ contracts and to establish the Autorité des marchés publics. As a result, the new entity created by this bill, the AMP, was granted all existing responsibilities then held by the AMF in regards to the pre-authorization regime. The “transition” officially took place on Jan. 25, the date on which these functions of the AMP took.
Apart from this transition, since Jan. 25, the AMP also exercises new powers related to the supervision of contracts of public bodies. The AMP can, on its own initiative, conduct an audit to determine if the normative framework to which a public body is subject is being followed, whether upstream (tendering or awarding process) or downstream (performance and management of the contract). Under this audit process, the AMP has broad remedial powers, including the power to order the public body to amend the tender documents or, in extreme cases, to order the cancellation of the call for tenders.
Furthermore, the AMP will now be responsible for the new complaints system implemented by Bill 108, which will take effect on May 25. This system offers an alternative avenue to the judicial process for enterprises that believe, for example, that they have been prejudiced by a call for tenders. In addition, a new obligation for public bodies entering into mutual agreements will come into force on May 25. The public body will now have to publish a 15-day notice of intent prior to the awarding of such a contract, in order to allow any other enterprise to express its interest. Failure to publish such a notice will result in a significant sanction, namely cancellation of the agreement.
These changes will definitely have an impact on the Quebec public procurement scene. As we follow the work on the new AMP, we will see if this new actor will breathe new life into the Quebec legislature’s objective of having an upright public contracts sector.
Sophie Perreault and Justine Brien are lawyers with Langlois Lawyers.