Canada: The Act Respecting Contracting By Public Bodies: A New Quebec Procurement Paradigm?

The province of Quebec has long regulated the procurement of public services and construction contracts through the Act respecting contracting by public bodies1. The Act provided a legislative and regulatory regime governing the procurement by public authorities of supply, service and construction contracts.

The regime initially provided, in essence, that public bodies were required to proceed by way of public tender for contracts the value of which varied depending on the type of contract2 and the regulations set out the process which had to be adhered to. At the time the regulation was relatively innovative in that it allowed a qualitative analysis of bids submitted for certain types of contracts.

Since that time and as result of the various investigations which were carried out or are still ongoing, the provincial government has sought to address various concerns by amending the Act. A first series of measures was enacted which provided that, if contractors were convicted of certain identified offenses, they would be rendered ineligible for public contracts, and a register was established which would identify those ineligible contractors so that any public body issuing a tender could ascertain whether a given bidder was ineligible for same.

Confronted with the troubling testimony heard before the Charbonneau Commission revealing questionable practices dealing with the award of construction contracts, the newly elected provincial government tabled, on November 1, 2012, Bill - 1 entitled Integrity in Public Contracts Act, which amends, amongst other statutes, the Act respecting contracting by public bodies and, in effect, abolishes the existing register and creates a new register which will list those individuals and or contractors that will be authorized to transact business with the provincial government, either directly or by way of subcontract. The Bill has also extended its "reach" as it will apply not only to a wider array of "public bodies" but also to municipalities which were previously not subject to the Act.

The Bill has not yet been enacted and is presently the subject of parliamentary hearings pursuant to which the government may amend legislation to reflect some of the concerns that have been raised by the various stakeholders.

The new legislative and regulatory framework will require that any contractor interested in providing services to the government will have to be registered the effect of which will be to authorize the contractor to bid on public contracts and to contract for same. The registration, once obtained, will be valid for 3 years, which will then require a renewal. Where a consortium is formed for the purposes of a public contract, each member of the consortium will have to be authorized.

The Autorité des marchésfinanciers (the "Authority") has been tasked with administering the register, the applications for registration and their renewals. The Authority will either refuse to register a contractor or may revoke an existing authorization where it is shown that, in the preceding 5 years, the contractor or any of the shareholders3, directors or officers has been found guilty of one or more of the offenses listed in schedule to the Bill. The listed offenses are numerous and include fraud and tax evasion.

Moreover, where a contractor's authorization expires, due to either non-renewal or revocation, during the course of the contract, the contractor will be deemed to be in default at the expiry of the 60 days following the Authority's decision. The legislation does allow a contractor in such a position to obtain from the Conseil du Trésor leave to continue the performance of the contract on the terms and conditions that the Conseil du Trésormay deem appropriate.

In order to ensure that the public authorities comply with the provisions, they will be required to appoint a "contract rules compliance monitor" who will be charged with ensuring that the legislation and its regulations are followed and to review the public institution's internal governance measures to ensure that they meet these new requirements.

One provision which raises a number of questions and concerns relates to the discretion granted to the Authority to either refuse to qualify or revoke a previously granted authorization if it considers that "public confidence in the enterprise concerned is undermined on account of a lack of integrity on the part of the enterprise, any of its partners, directors or officers or another enterprise that has direct or indirect, legal or de facto control over the enterprise".

The discretion granted to the Authority by this provision is wide-rangling and, if enacted in its present form, will likely result in much uncertainty until such time as the courts will have circumscribed the ambit of the discretion. The draft legislation provides by way of some specific examples, some indication as to the manner in which the discretion may be exercised:

  • Whether, in the preceding 5 years, the contractor or any of its shareholders, partners, directors, officers or another contractor that has a direct or indirect legal or de facto control over the enterprise has been the subject of indictments pertaining to the listed offenses;
  • Whether the contractor or any of its shareholders, partners, directors, officers or another enterprise that has direct or indirect legal or de facto control over the contractor has, again in the preceding 5 years, been found guilty of, or been indicted for any other criminal or penal offense or has behaved in a reprehensible way in the course of the contractor's business;
  • Whether a reasonable person would conclude that the enterprise is the extension of another enterprise that would be unable to obtain an authorization;
  • Whether the enterprise can be perceived as lending its name to another enterprise that would be unable to obtain an authorization;
  • Whether the enterprise is unable to prove that has legal sources of financing enabling it to carry out the contracts it has obtained;
  • Whether the contractor's structure enables it to circumvent the application of the legislation.

This proposed legislation, which will require that all contractors interested in contracting with the public authorities establish their bona fides in order to obtain the authorization from the Authority, represents a significant departure from the existing regime which, for the time being, allows contractors to contract with public bodies unless having been listed on a register which expressly prohibits them from bidding and contracting with public entities.

The Bill has been the object of public consultation and numerous construction stakeholders, such as design professionals and construction industry associations, have provided comments on the draft legislation and suggested amendments.

If enacted in its present form, the Bill will obviously impact the procurement requirements of various public infrastructure projects, and contractors, amongst others, will have to modify their processes in order to ensure that they obtain the requisite authorization.


1 c. C- 65.1

2 The amounts were those provided in any existing interprovincial agreement: The amounts for construction contracts, by way of example, was $ 100 000.

3 Holding 50% or more of the voting rights.

About BLG

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

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

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must 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 (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

To Use 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.


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.


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