On May 9, 2024, Quebec's Minister responsible for Infrastructure, Jonatan Julien, introduced Bill 62, An Act mainly to diversify the acquisition strategies of public bodies and increase their agility in carrying out infrastructure projects (Bill 62) in the National Assembly of Quebec. Bill 62 aims to reduce construction costs and delays for major projects by reforming the contracting process for public bodies.
Partnership contract
Bill 62 introduces a new type of contract, namely the partnership contract, which replaces the public-private partnership (P3) contract. A partnership contract distinguishes itself from a P3 contract by providing public bodies with greater flexibility and allowing them to entrust a private partner with the responsibility of carrying out an infrastructure project.
Under current legislation, a P3 contract exists where a private partner is entrusted by a public body with the responsibility of designing, building, and operating an infrastructure.
Pursuant to Bill 62, the partnership contract would be included in a broader definition of mixed construction and professional service contracts under which a public body brings in a private partner to participate in designing and building public infrastructure by using a collaborative approach during or after the tendering process. Under a partnership contract, a public body would be able to entrust, at its discretion, a private partner with other responsibilities related to an infrastructure project, such as its financing, maintenance or operation. These additional responsibilities, which were necessary for the application of exemptions to Quebec's Act respecting Contracting by public bodies (Act) for P3 contracts, would now be optional and extend the scope of application to partnership contracts that include several alternatives to traditional P3s.
Bill 62 emphasizes, for a given infrastructure project, the use of a collaborative approach, which may include holding bilateral workshops, pooling resources and information related to the project, as well as consenting to share risks in order to distribute the savings generated or the losses sustained in the course of the project.
The relevant provisions of the Regulation respecting supply contracts, service contracts and construction contracts of bodies referred to in section 7 of the Act respecting Contracting by public bodies would apply, with the necessary modifications, in respect of any partnership contract-rendering process until the coming into force of a new regulation specific to partnership contracts.
Contract by mutual agreement
Bill 62 would also provide public bodies with the possibility of entering into a contract by mutual agreement without it being necessary to publish a notice of intention, in cases where no compliant bid has been submitted in response to a call for tenders, the contract meets the need expressed in the call for tenders, and the successful bidder meets the requirements of the call for tenders. The successful bidder would have to submit a compliant proposal within 90 days of the closing date of the call for tenders, in addition to satisfying the requirements of the original call for tenders.
Amendments to contracts
Previously, the head of a public body could not authorize amendments to a contract that had been subject to a public call for tenders if the amendments resulted in an expenditure exceeding 10% of the initial amount of the contract. Bill 62 would remove this limitation and provide the heads of public bodies with more discretion in determining whether such amendments are accessory to the contract and do not change its nature. However, heads of public bodies would still need to keep in mind requirements pertaining to transparency and the fair and honest treatment of bidders.
Autorité des marchés publics (AMP)
Bill 62 would expand the audit powers of the AMP, Quebec's public body in charge of monitoring public contracts, and provides that these powers would apply despite any duty of confidentiality or loyalty that may be binding on a person. These expanded audit powers would also enable the AMP to demand the production of information or documents from former directors, partners, officers and shareholders of any entity subject to the AMP's oversight, as well as from any other person bound or previously bound, directly or indirectly, to such an entity.
In addition, with respect to the tendering of partnership contracts, Bill 62 would allow public bodies to specify the date on which a bidder would be required to hold an authorization from the AMP. Bill 62 provides that such date may be later than the date of submission of the tender but not later than the one on which the contract is entered into.
Annulment of a decision rendered by a third-person decider
Bill 62 would introduce a procedure for requesting the annulment of a decision rendered by a third-party decider following a dispute settlement process relating to construction work carried out on behalf of a public body. It also specifies the reasons why such a decision may be annulled. While Bill 62 makes no mention of Quebec's Code of Civil Procedure, these reasons are the same, with the necessary modifications, as those allowing a court to refuse the homologation of an arbitration award.
Société québécoise des infrastructures (SQI)
Bill 62 would also expand the powers of the SQI, by allowing it to offer to any person, in cases and conditions determined by Quebec's treasury, the Conseil du trésor, any service that falls within the scope of the SQI's mission and activities, including construction, maintenance, operation and property management services. Bill 62 also provides that the SQI could also be entrusted with any mandate relating to the repurposing of surplus spaces among its immovable assets.
Centre d'acquisitions gouvernementales (CAG)
Bill 62 would modify the composition of the governance committee of the CAG by adding the Deputy Minister of the Ministère de l'Éducation, du Loisir et du Sport (Ministry of Education, Leisure and Sport), the Deputy Minister of the Ministère de l'Enseignement supérieur, de la Recherche, de la Science et de la Technologie (Ministry of Higher Learning, Research, Science and Technology) and the President and Chief Executive Officer of Santé Québec to its roster. It should be noted that, pursuant to Bill 62, the members of the CAG's governance and audit committees would be eligible for compensation on terms and to the extent as may be determined by the Government of Quebec.
Conclusion
We will be monitoring the progress of Bill 62 in the coming months. If Bill 62 is passed, it will be interesting to see the impact these changes will have on Quebec's infrastructure sector.
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