Canada: Coming Into Force Of Provisions Concerning Public Bodies' Obligation To Establish A Procedure For Receiving And Examining Complaints

In January, we published an article on the enactment of certain provisions of the Act to facilitate oversight of public bodies' contracts and to establish the Autorité des marchés publics (the "Act"). This follow-up article deals with a new series of provisions implementing some of the other recommendations that emanated from the Commission of Inquiry on the Awarding and Management of Public Contracts in the Construction Industry (the "Commission"), otherwise known as the Charbonneau Commission, and coming into force on May 25, 2019. Public bodies must now have a procedure for receiving and examining complaints made in the course of the contract tendering or awarding process.

Complaint Management System

The Act establishes a new complaint management system for public bodies, both for tendering processes and for privately agreed contracts.

Before May 25, 2019, any interested person who believed that the public tendering or awarding process did not meet the specified requirements, felt aggrieved or disadvantaged by the process, or identified an anomaly, had relatively limited recourse.

Prior to the contract being awarded, the person could:

  1. contact the contact person identified in the call for tenders document or the public body's contact person or use the complaint mechanism provided by the public body and, in the absence of follow-up, the person was required to contact the Secrétariat du Conseil du trésor in writing;
  2. give notice to the public body before the deadline for receipt of tenders in order to obtain the desired remedy, such as an amendment to the tender documents; or
  3. take legal action to obtain an injunction requiring the public body to amend the tender documents or prevent the award of the contract to an ineligible/non-compliant company.

Following the award of the contract, the person could initiate a claim for damages to be indemnified for loss of earnings due to anomalies in the tendering or award process.

As of May 25, 2019, a formalized complaint process will be made available to interested parties. This process is divided into two stages. The first requires a complaint to the public body; the second to the Autorité des marchés publics (the "Authority").

The Authority may, in response to any complaint received, investigate and make any orders or recommendations it deems necessary. With regard to complaints, the Authority has the same powers as when it dealt ex officio with an irregularity in the process.

Measures prior to the implementation of the complaint management system

To ensure the effective operation of this process, the Act requires public bodies to establish a procedure for responding fairly to complaints received in the context of tendering or awarding 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, i.e. the award of a privately agreed contract, the public body must publish a notice of intent on the Quebec Government's Système électronique d'appel d'offres (the "SEAO") prior to executing such contracts in order to allow companies able to carry out the project to demonstrate their ability to meet the public body's requirements.

As part of a tendering process, i.e. the awarding of a contract by public tender, the public body carrying out this public tender must issue a notice to that effect to the SEAO. The notice is an integral part of the tender documents and formalizes the complaint procedure by requiring the organization to include the deadline for receiving any related complaints.

Complaints for public tenders (tendering process)

Only a company or group of companies interested in participating in the tendering process (or its representative) may make a complaint regarding an ongoing public tender.

The deadline for the receipt of complaints is determined by adding a period corresponding to half the time limit for receipt of tenders to the date of the notice of invitation to tender, but must not be less than 10 days. For example, if the date of the tender notice is November 15 and the deadline for receipt of tenders is December 15, the deadline for receipt of complaints will be December 1st.

The complainant must first contact the public body directly if he or she considers that the public tender documents:

  1. provide conditions that do not ensure fair and equitable treatment of competitors
  2. do not allow competitors to participate despite being qualified to meet the stated procurement requirements; or
  3. do not otherwise comply with the applicable normative framework.

To be admissible, the complaint must be transmitted electronically to the official identified in the procedure published by the body or, failing that, to the head of the public body, using a form determined by the Authority.

The public body has up to three days before the deadline for receipt of tenders to provide a response to the complainant. If a complainant disagrees with the public body's decision, they will have three days to file his complaint with the Authority.

In the absence of a response from the public body within the time limit, the complainant will have a three-day window before the deadline for receipt of submissions to initiate a complaint with the Authority.

Exceptionally, the complainant may apply directly to the Authority in the event the public body amends the tender documents within the two-day period preceding the deadline for receipt of complaints.

Complaints for Privately Agreed Contracts (awarding process)

The public body must, at least 15 days before entering into a privately agreed contract, publish a notice of intent at the SEAO. This period allows any company to express its interest in carrying out this contract.

Interested companies have five days before the date of execution of the contract to transmit a notice of interest electronically. The public body must communicate its decision at least seven days before the planned date of conclusion of the contract, postponing the planned execution date 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 the receipt of the decision to file a complaint with the Authority. In the absence of a response from the public body three days before the expected date of execution of the contract, the company will have until the day before the contract is executed to file a complaint with the Authority. In the absence of publication of a notice of intent in the SEAO required by the Act, the company may file a complaint directly with the Authority.

Powers and functions of the Authority following a complaint

The Authority will use its investigative functions if it considers it necessary to make a decision. It will hear the concerned parties in accordance with a procedure to be published on its website. It has 10 days from the receipt of the public body's comments to make its decision. If necessary, it may postpone the submission of tenders to a new deadline as part of a tendering process. The publication of the decision follows much of the same rules promulgated in January, as described in our initial article.

A public contract concluded as a result of a tendering or award process carried on by a public body either before the Authority has issued its decision on a complaint or in contravention of an order to amend the tender documents shall be automatically terminated as from the receipt by the body and its contractor of a notification to that effect from the Authority.

A contract concluded by private agreement by a public body without having been the subject of the publication of the notice of intent provided for by law shall be automatically terminated as from the receipt by the body and its contractor of a notification from the Authority to this effect. It should be noted that the powers of order and the provisions referring to automatic termination 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 Authority with respect to the City of Montréal and certain organizations directly covered by the Act, thus conferring a certain autonomy on the Québec metropolis.

Reports of Wrongdoing

As of May 25, 2019, reports of wrongdoing involving the compliance of a public body's contractual management with the regulatory framework will no longer be made to the Quebec Ombudsman Protector, but to the Authority. Any person will then be able to provide the Authority with information relating to a process of tendering or awarding a public contract or the performance of such a contract. However, the legal department of the Quebec Ombudsman remains available.

The provisions of this section do not take into account privacy laws or any other restrictions on communication such as the obligation of confidentiality or loyalty to one's employer or client. Only solicitor-client privilege and certain contemporary executive council documents are exempt from this requirement.

Read the original article on GowlingWLG.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
18 Jun 2019, Seminar, London, UK

This interactive workshop will provide GCs, Heads of Legal and senior in-house lawyers with skills and confidence to implement a cyber incident response plan.

3 Jul 2019, Seminar, London, UK

Hear the latest thoughts and developments on TUPE from our employment experts.

19 Sep 2019, Seminar, Birmingham, UK

Providing GCs, Heads of Legal and senior in-house lawyers with timely, topical and practical legal advice on a variety of topics.

Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions