C-65.1 - Act respecting contracting by public bodies

Full text
chapter C-65.1
Act respecting contracting by public bodies
CONTRACTING BY PUBLIC BODIESJune 15 2006October 1 2008
CHAPTER I
PURPOSE AND SCOPE
1. The purpose of this Act is to determine the conditions that are to govern the contracts that a public body may enter into with a for-profit legal person established for a private interest, a general, limited or undeclared partnership, a sole proprietorship or an enterprise most of whose employees are handicapped persons.
2006, c. 29, s. 1.
2. In compliance with all applicable intergovernmental agreements, the conditions determined by this Act aim to promote
(1)  transparency in contracting processes;
(2)  the honest and fair treatment of tenderers;
(3)  the opportunity for qualified tenderers to compete in calls for tenders made by public bodies;
(4)  the use of effective and efficient contracting procedures, including careful, thorough evaluation of procurement requirements that reflects the Government’s sustainable development and environmental policies;
(5)  the implementation of quality assurance systems for the goods, services or construction work required by public bodies; and
(6)  accountability reporting by the chief executive officers of public bodies to verify the proper use of public funds.
For the purposes of this Act, intergovernmental agreement means a public procurement liberalization agreement between Québec and another jurisdiction.
2006, c. 29, s. 2.
3. The following public procurement contracts are subject to this Act when they involve public expenditure:
(1)  supply contracts, including contracts for the purchase, lease or rental of movable property, which may include the cost of installing, operating and maintaining the property;
(2)  construction contracts to which the Building Act (chapter B-1.1) applies and for which the contractor must hold the licence required under Chapter IV of that Act; and
(3)  service contracts other than contracts to integrate the arts with the architecture and environment of government buildings and sites.
The following contracts are also subject to this Act whether or not they involve public expenditure:
(1)  public-private partnership contracts within the meaning of the Act respecting the Agence des partenariats public-privé du Québec (chapter A-7.002); and
(2)  any other contract determined by government regulation.
Contracts of affreightment, contracts of carriage other than those subject to the Education Act (chapter I-13.3), damage insurance contracts and contracts of enterprise other than construction contracts are considered to be service contracts.
2006, c. 29, s. 3.
4. For the purposes of this Act, public bodies include
(1)  government departments;
(2)  bodies all or part of whose expenditures are provided for in the budgetary estimates tabled in the National Assembly otherwise than under a transferred appropriation;
(3)  bodies whose personnel is appointed in accordance with the Public Service Act (chapter F-3.1.1);
(4)  bodies a majority of whose members or directors are appointed by the Government or by a minister and at least half of whose expenditures are borne directly or indirectly by the consolidated revenue fund;
(5)  school boards, the Comité de gestion de la taxe scolaire de l’île de Montréal, general and vocational colleges, and university institutions referred to in paragraphs 1 to 11 of section 1 of the Act respecting educational institutions at the university level (chapter E-14.1); and
(6)  health and social services agencies and public institutions referred to in the Act respecting health services and social services (chapter S-4.2), legal persons and joint procurement groups referred to in section 383 of that Act, the Cree Board of Health and Social Services of James Bay established under the Act respecting health services and social services for Cree Native persons (chapter S-5), health communication centres within the meaning of the Act respecting pre-hospital emergency services (chapter S-6.2) and the Corporation d’hébergement du Québec.
A person appointed or designated by the Government or a minister, together with the personnel directed by the person, in the exercise of the functions assigned to the person by law, the Government or a minister, is considered to be a body.
2006, c. 29, s. 4.
5. The National Assembly, any person appointed or designated by the National Assembly to exercise functions under its authority, the personnel directed by that person, and the Commission de la représentation are subject to this Act only to the extent determined by an Act.
2006, c. 29, s. 5.
6. The Conseil de la magistrature and the committee on the remuneration of the judges of the court of Québec and municipal courts are not subject to this Act.
2006, c. 29, s. 6.
7. Bodies other than those referred to in sections 4 to 6 and at least half of whose members or directors are appointed or elected by the Government or by a minister must adopt a contracting policy and make it public not later than 30 days after its adoption.
The policy referred to in the first paragraph must be consistent with any applicable intergovernmental agreement and reflect the principles set out in sections 2 and 14.
2006, c. 29, s. 7.
8. The deputy minister of a government department or, in the case of a public body referred to in subparagraphs 2 to 4 and 6 of the first paragraph of section 4, the person responsible for its administrative management, is to exercise the functions this Act confers on the chief executive officer of a public body.
The chief executive officer, in the case of a body referred to in subparagraph 5 of the first paragraph of section 4, is the board of directors and, in the case of a school board, the council of commissioners. The board of directors or the council of commissioners may, by regulation, delegate all or part of the functions conferred on the chief executive officer to the executive committee, the director general or, in the case of a university institution, a member of the senior administrative personnel within the meaning of the Act respecting educational institutions at the university level (chapter E-14.1).
2006, c. 29, s. 8.
9. With regard to public procurement contracts and public-private partnership contracts, this Act prevails over any contrary prior or subsequent general or special Act unless the general or special Act expressly states that it applies despite this Act.
2006, c. 29, s. 9.
CHAPTER II
CONTRACT AWARD
DIVISION I
PUBLIC CALLS FOR TENDERS
10. A public body must make a public call for tenders
(1)  for any supply, service or construction contract involving an expenditure equal to or above the lowest threshold specified in an intergovernmental agreement applicable to the contract and the public body;
(2)  for any public-private partnership contract; and
(3)  for any other contract determined by government regulation.
For the purposes of subparagraph 1 of the first paragraph, the threshold applicable to a contract not subject to an intergovernmental agreement is the threshold for supply, service or construction contracts, as appropriate.
A public body must consider making a regionalized public call for tenders for any contract not subject to an intergovernmental agreement.
2006, c. 29, s. 10.
11. A public call for tenders is made by publishing a notice on the electronic tendering system approved by the Government.
2006, c. 29, s. 11.
12. No public body may split or segment its procurement requirements or amend a contract for the purpose of avoiding the obligation to make a public call for tenders or any other obligation under this Act.
2006, c. 29, s. 12.
DIVISION II
CONTRACTS BY MUTUAL AGREEMENT
13. A contract involving an expenditure above the public tender threshold specified in section 10 may be entered into by mutual agreement
(1)  if there is an emergency that threatens human safety or property;
(2)  if there is only one possible contractor because of the existence of a guarantee, an ownership right or an exclusive right such as a copyright or a right based on an exclusive licence or patent, or because of the artistic, heritage or museological value of the required property or service;
(3)  if the contract involves confidential or protected information whose disclosure in a public call for tenders could compromise its confidential nature or otherwise hinder the public interest;
(4)  if the public body considers that it will be able to prove, in accordance with the principles set out in section 2, that a public call for tenders would not serve the public interest given the object of the contract concerned; or
(5)  in any other case determined by government regulation.
In the cases described in subparagraphs 3 and 4 of the first paragraph, the contract must be authorized by the chief executive officer of the public body, who must inform the minister responsible on an annual basis.
2006, c. 29, s. 13.
DIVISION III
CONTRACTS INVOLVING AN EXPENDITURE BELOW THE PUBLIC TENDER THRESHOLD
14. Public bodies must award contracts involving an expenditure below the public tender threshold in accordance with the principles set out in this Act. To ensure the sound management of such contracts, public bodies must, among other means, consider whether they should
(1)  make a public call for tenders or issue an invitation to tender;
(2)  introduce measures to favour the procurement of goods, services or construction work from tenderers or contractors in the region concerned, subject to any applicable intergovernmental agreement;
(3)  use a rotation system among the tenderers or contractors they deal with, or seek new tenderers or contractors;
(4)  include provisions to control the amount of such contracts and of any related additional expenditure, especially in the case of contracts by mutual agreement; or
(5)  set up a monitoring mechanism to ensure that the contracting process is effective and efficient.
2006, c. 29, s. 14.
CHAPTER III
JOINT CALLS FOR TENDERS BY PUBLIC BODIES
15. Two or more public bodies may make a joint call for tenders.
A public body may also be party to a joint call for tenders with a legal person established in the public interest whose contracting conditions are different from those determined by this Act. In such a case, the conditions for the joint call for tenders are those to which the public body or the legal person established in the public interest is subject.
2006, c. 29, s. 15.
16. No public body may make a joint call for tenders under section 15 without taking into account its impact on the regional economy.
2006, c. 29, s. 16.
CHAPTER IV
CONTRACT AMENDMENTS
17. A contract may be amended if the amendment is accessory and does not change the nature of the contract.
However, if the contract involves an expenditure above the public tender threshold, an amendment that entails an additional expenditure must moreover be authorized by the chief executive officer of the public body. The chief executive officer may delegate, in writing and to the extent specified, the power to authorize such an amendment. Additional expenditures authorized under a given delegation may not total more than 10% of the initial amount of the contract.
Despite the second paragraph, an amendment does not require authorization if it is due to a variation in the amount to which a predetermined percentage is to be applied or, subject to section 12, to a variation in a quantity for which a unit price has been agreed.
2006, c. 29, s. 17.
CHAPTER V
PUBLIC-PRIVATE PARTNERSHIP CONTRACTS
18. Public-private partnership contracts are to be entered into in accordance with this chapter, the principles set out in section 2 of this Act and those set out in the second paragraph of section 4 of the Act respecting the Agence des partenariats public-privé du Québec (chapter A-7.002).
2006, c. 29, s. 18.
19. A public call for tenders for a public-private partnership contract may involve different stages according to the complexity of the project and the number of potentially interested tenderers. The stages of the call for tenders must be defined in the tender documents. However, a stage may be adapted with the consent of the majority of the tenderers having a stake in the subsequent stages.
2006, c. 29, s. 19.
20. The tender documents must include
(1)  the criteria and conditions against which the public body will evaluate the tenderers and their proposals;
(2)  provisions allowing the public body to ensure compliance at all times with the rules applicable to it, particularly as regards access to documents held by public bodies and the protection of personal information, and to meet accountability reporting requirements; and
(3)  conflict of interest rules.
2006, c. 29, s. 20.
21. Subject to the conditions specified in the call for tenders and in accordance with its express provisions concerning how it may be amended, the public body may,
(1)  after the first stage of the selection process and at any subsequent stage, undertake discussions with each of the selected tenderers to further define the technical, financial or contractual aspects of the project and give each of them the opportunity to submit a proposal based on the outcome of those discussions; and
(2)  at the end of the selection process, negotiate, with the selected contractor, the provisions needed to finalize the contract while preserving the basic elements of the tender documents and the proposal.
2006, c. 29, s. 21.
CHAPTER VI
INFORMATION TO BE PUBLISHED
22. A public body must, in the cases, on the conditions and in the manner determined by government regulation, publish information on the contracts it has entered into which involve an expenditure over $25,000.
2006, c. 29, s. 22.
CHAPTER VII
REGULATORY POWERS
23. The Government may, by regulation, after consulting the Minister of Education, Recreation and Sports and the Minister of Health and Social Services and on the recommendation of the Conseil du trésor,
(1)  determine conditions other than those determined in this Act for contracts referred to in the first paragraph of section 3 or subparagraph 1 of the second paragraph of that section, including contract management rules or procedures;
(2)  determine contracts to which this Act applies other than those referred to in the first paragraph of section 3 or subparagraph 1 of the second paragraph of that section and determine conditions for those other contracts which may, subject to existing legislative provisions, be different from those otherwise applicable under this Act;
(3)  determine bid solicitation procedures and the contract award rules applicable to them;
(4)  determine cases in which a public call for tenders must be made other than those set out in subparagraphs 1 and 2 of the first paragraph of section 10;
(5)  determine cases in which a contract involving an expenditure above the public tender threshold may be entered into by mutual agreement other than those set out in subparagraphs 1 to 4 of the first paragraph of section 13;
(6)  determine the cases, conditions and manner in or on which a public body must publish information on the contracts it has entered into which involve an expenditure over $25,000; and
(7)  determine cases in which contracts are subject to authorization by the Government, the Conseil du trésor, the minister responsible, the chief executive officer of a public body, a health and social services agency or a person designated by regulation other than those set out in this Act.
For the purposes of this Act, minister responsible means
(1)  the Conseil du trésor in the case of contracts by public bodies referred to in subparagraphs 1 to 4 of the first paragraph of section 4;
(2)  the Minister of Education, Recreation and Sports in the case of contracts by public bodies referred to in subparagraph 5 of the first paragraph of section 4; and
(3)  the Minister of Health and Social Services in the case of contracts by public bodies referred to in subparagraph 6 of the first paragraph of section 4.
2006, c. 29, s. 23.
24. The conditions for contracts and the cases in which contracts are subject to authorization under the first paragraph of section 23 may vary in respect of all contracts, certain categories of contracts or certain contracts entered into by a public body designated by regulation.
2006, c. 29, s. 24.
CHAPTER VIII
POWERS OF THE GOVERNMENT AND THE MINISTERS RESPONSIBLE
25. The Government may, on the recommendation of the Conseil du trésor, authorize a public body to enter into a contract on conditions different from those applicable to it under this Act, and determine the conditions for such a contract.
The minister responsible for a public body may authorize the public body to enter into a contract on conditions different from those applicable to it under a regulation under the first paragraph of section 23, and determine the conditions for such a contract.
2006, c. 29, s. 25.
26. A minister responsible may establish policies for the management of the supply, service and construction contracts of the public bodies under the minister’s authority. The minister responsible sees to the implementation of the policies and to their application by those public bodies.
The policies established under the first paragraph may also apply to contracts entered into with a non-profit legal person established for a private interest, a natural person other than the operator of a sole proprietorship or any other entity not referred to in section 1.
2006, c. 29, s. 26.
27. A minister responsible, after consulting the public bodies concerned, may prescribe model contract forms or other standard documents to be used by them.
In such a case, the minister responsible must ensure that such model contract forms and other standard documents are consistent with those, if any, prescribed by the other ministers responsible.
2006, c. 29, s. 27.
CHAPTER IX
AMENDING PROVISIONS
28. (Omitted).
2006, c. 29, s. 28.
29. (Amendment integrated into c. A-6.01, s. 77).
2006, c. 29, s. 29.
30. (Amendment integrated into c. A-29.011, s. 115.14).
2006, c. 29, s. 30.
31. (Amendment integrated into c. B-1.1, s. 65.4).
2006, c. 29, s. 31.
32. (Amendment integrated into c. C-29, s. 18.0.1).
2006, c. 29, s. 32.
33. (Omitted).
2006, c. 29, s. 33.
34. (Amendment integrated into c. D-8.1, s. 3).
2006, c. 29, s. 34.
35. (Amendment integrated into c. E-3.3, s. 488.2).
2006, c. 29, s. 35.
36. (Amendment integrated into c. I-13.3, s. 266).
2006, c. 29, s. 36.
37. (Amendment integrated into c. I-13.3, s. 452).
2006, c. 29, s. 37.
38. (Amendment integrated into c. M-19, s. 11.1).
2006, c. 29, s. 38.
39. (Amendment integrated into c. P-32, s. 35.1).
2006, c. 29, s. 39.
40. (Amendment integrated into c. S-2.1, ss. 167.1 and 167.2).
2006, c. 29, s. 40.
41. (Amendment integrated into c. S-2.1, s. 176.0.3).
2006, c. 29, s. 41.
42. (Amendment integrated into c. S-4.2, s. 264).
2006, c. 29, s. 42.
43. (Amendment integrated into c. S-4.2, s. 385.9).
2006, c. 29, s. 43.
44. (Amendment integrated into c. S-4.2, s. 485).
2006, c. 29, s. 44.
45. (Amendment integrated into c. S-4.2, s. 487).
2006, c. 29, s. 45.
46. (Amendment integrated into c. S-5, s. 173.1).
2006, c. 29, s. 46.
47. (Amendment integrated into c. S-11.011, s. 23.0.14).
2006, c. 29, s. 47.
48. (Amendment integrated into c. S-11.011, s. 23.0.15).
2006, c. 29, s. 48.
49. (Amendment integrated into c. S-17.1, s. 34).
2006, c. 29, s. 49.
50. (Amendment integrated into c. V-5.01, s. 67).
2006, c. 29, s. 50.
51. (Omitted).
2006, c. 29, s. 51.
52. References to the Public Administration Act (chapter A-6.01) are replaced by references to the Act respecting contracting by public bodies (chapter C-65.1) wherever they occur in the following provisions:
(1)  (amendment integrated into c. C-11.5, s. 43 of Schedule C);
(2)  (amendment integrated into c. C-19, ss. 29.9.2 and 573.3.2);
(3)  (amendment integrated into c. C-27.1, aa. 14.7.2 and 938.2);
(4)  (amendment integrated into c. C-37.01, s. 114);
(5)  (amendment integrated into c. C-37.02, s. 107);
(6)  (amendment integrated into c. M-28, s. 11.5);
(7)  (amendment integrated into c. P-9.001, s. 2);
(8)  (paragraph repealed);
(9)  (amendment integrated into c. V-6.1, ss. 207.1 and 358.5).
2006, c. 29, s. 52; 2007, c. 23, s. 16.
53. Unless the context indicates otherwise, a reference in a regulation, order or other document to Chapter V of the Public Administration Act (chapter A-6.01) or to a regulation under that Act regarding the management of contracts is, where applicable, a reference to the corresponding provision of this Act.
2006, c. 29, s. 53.
CHAPTER X
TRANSITIONAL AND FINAL PROVISIONS
54. The following regulations and by-laws are deemed to have been made under section 23:
(1)  a regulation made or deemed made under the Public Administration Act (chapter A-6.01) regarding contract management;
(2)  the By-law respecting special rules governing supply contracts, construction contracts, and services contracts of the Société immobilière du Québec, approved by Order in Council 76-96 (1996, G.O. 2, 1035);
(3)  the By-law concerning special rules respecting certain contracts entered into by the Société québécoise d’assainissement des eaux, approved by Order in Council 1229-94 (1994, G.O. 2, 3815);
(4)  a regulation under the General and Vocational Colleges Act (chapter C-29), the Education Act (chapter I-13.3), the Act respecting health services and social services (chapter S-4.2) and the Act respecting health services and social services for Cree Native persons (chapter S-5) regarding procurement contracts, construction contracts or service contracts; and
(5)  the Regulation respecting contracts of the Corporation d’hébergement du Québec, approved by Order in Council 972-2001 (2001, G.O. 2, 4866).
Those regulations and by-laws continue to apply, with the necessary modifications, until replaced or repealed by a regulation under this Act.
2006, c. 29, s. 54.
See the Regulation revoking various regulatory provisions regarding contracts of public bodies. (Order in Council 535-2008 dated 28 May 2008;(2008) 140 G.O. 2, 2109).
55. The Règles sur les frais de déplacement des personnes engagées à honoraires, enacted by decision of the Conseil du trésor C.T. 170100 dated 14 March 1989 and amended by decisions of the Conseil du trésor C.T. 170875 dated 23 May 1989, C.T. 171025 dated 6 June 1989, C.T. 177747 dated 3 July 1991, C.T. 178690 dated 12 November 1991, C.T. 182100 dated 13 January 1993, C.T. 198916 dated 15 October 2002, C.T. 199969 dated 25 June 2003, C.T. 200484 dated 9 December 2003, C.T. 201797 dated 7 December 2004 and C.T. 202701 dated 2 August 2005, remain in force until replaced by provisions to the same effect made under this Act.
2006, c. 29, s. 55.
56. The electronic tendering system commonly called SEAO, operated by the service provider selected by the Secrétariat du Conseil du trésor and referred to in Order in Council 493-2004 (2004, G.O. 2, 2701, in French only) is deemed to have been approved by the Government for the purposes of this Act.
2006, c. 29, s. 56.
57. Contract award procedures begun before 1 October 2008 are continued in accordance with the provisions in force on the date of the beginning of the procedures.
2006, c. 29, s. 57.
58. Any contract in progress on 1 October 2008 is continued in accordance with this Act. If a provision of this Act is incompatible with a provision of the contract, the latter provision prevails.
2006, c. 29, s. 58.
59. The minister who is the Chair of the Conseil du trésor is responsible for the administration of this Act.
2006, c. 29, s. 59.
60. (Omitted).
2006, c. 29, s. 60.