The AMP's New Extrajudicial Complaint System Is Underway!

The provisions of the Act respecting the Autorité des Marchés Publics concerning complaints in public contract matters will come into effect on May 25, 2019.

A business may file a complaint with the Autorité des Marchés Publics (Quebec's Public Procurement Authority) (or "AMP") regarding a call for tenders if the documents pertaining to this call for tenders:

• include conditions that do not ensure fair and equitable treatment of competitors;
• do not allow competitors to participate, even if they meet the relevant requirements; or 
• do not otherwise comply with the normative framework.

A business may also file a complaint with the AMP regarding the decision of a public body to award a contract by mutual agreement. A public body may, in exceptional circumstances, award a contract by mutual agreement that would ordinarily have been awarded through a public call for tenders. This may be the case, for example, when only one supplier is able to provide the materials or services required. To do so, however, the public body must publish its intention to award a contract by mutual agreement on the electronic tendering system for the Government of Quebec ("SEAO"). The public body's failure to publish its intention constitutes grounds for complaint to the AMP. A business may also file a complaint with the AMP if, after expressing an interest in performing a contract that the public body would prefer to award by mutual agreement, the public body still refuses to issue a call for tenders and maintains its intention to award the contract by mutual agreement.

The extrajudicial complaints system set up by the Act respecting the Autorité des Marchés Publics is one of the most eagerly awaited elements of judicial reform that led to the establishment of the AMP. 

The AMP is the watchdog for public procurement in Quebec and its creation was the primary recommendation of the Charbonneau Commission. The AMP's mission is to monitor public contracts and ensure that they are awarded and managed with integrity.

Following a complaint pertaining to a public tender, the AMP may, among other things, require a public body to:

• amend its public tender documents or cancel the public tender; or
• not pursue its intention to award a public contract by mutual agreement.

The powers of the AMP are extensive and extend well beyond those aforementioned.

In order to prevent complaints, it is likely that public bodies will question certain practices. While public bodies have always been subject to the general jurisdiction of the Superior Court for injunctive relief and judicial review of the content of their tender documents, the new right of complaint will greatly facilitate bidders who do not have the resources to bring such actions before the courts.

In addition, the new regime will be subject to strict time limits, and it should be noted that the AMP's extrajudicial complaint system will be much more expeditious than the traditional judicial system before the courts.

As such, the extrajudicial complaint system represents a major change for businesses and contractors participating in public tenders.

The AMP has made a mandatory complaint form available, which can be used by any business wishing to file a complaint in relation to a public tender.

In addition, we must remember that any complaint to the AMP must first be preceded by a complaint to the public body in question. This preliminary complaints procedure will enable public bodies to self-regulate and to ensure that their public tenders comply with the normative framework.

Furthermore, as of May 25, 2019, any person may relay information to the AMP relating to the procurement or award of a public contract or the implementation of such contract when the public body concerned does not appear to be acting in compliance with the normative framework. This information will enable the AMP to get a better idea of issues surrounding the awarding and management of public contracts. The powers of the AMP following the disclosure of information are less extensive than in complaint cases, but may nonetheless lead to their intervention and to improvement of processes. Any business that considers itself wronged should not hesitate to use the information disclosure mechanism, especially given its confidential nature.

Finally, let us not forget that the new extrajudicial complaint and disclosure systems that will take effect on May 25, 2019 follow on from the transfer of power from the Autorité des Marchés Financiers ("AMF") to the AMP on January 25, 2019 and relate to the issuance of the necessary authorisations that allow businesses to enter into contracts with public bodies, as well as managing the registry of businesses eligible for public contracts ("REA") and the registry of businesses not authorised for public contracts ("RENA").

The creation of the AMP and the implementation of all its powers represent the beginning of a new era for public procurement in Quebec. BCF's lawyers will follow the evolution of this field with interest.