C-65.1, r. 8.1 - Regulation respecting the register of enterprises ineligible for public contracts

À jour au 1^er janvier 2016

Ce document a valeur officielle.

chapter C-65.1, r. 8.1

Regulation respecting the register of enterprises ineligible for public contracts and oversight and monitoring measures

Act respecting contracting by public bodies

(chapter C-65.1, s. 23, 1st par., subpars. 8 to 10, 12 and 13).

CHAPTER I OFFENCES AND PERIOD OF INELIGIBILITY

1. The offences under a federal law or a Québec law or under a regulation under such a law in respect of which a conviction is considered for the purposes of ineligibility for public contracts are determined in Schedule 1, as well as the period of such ineligibility.

O.C. 470-2012, s. 1.

2. The convictions of a contractor or of an associate of a contractor in respect of the offences determined in Schedule 1 are considered as follows for the purposes of ineligibility for public contracts:

(1)  a conviction in respect of an offence determined in Division I of Schedule 1 entails ineligibility for public contracts for the period indicated in the Schedule in respect of the offence concerned;

(2)  5 convictions in respect of one or more offences determined in Division II of Schedule 1 entail ineligibility for public contracts for the period indicated in that Division, if those convictions occur within a period of 36 consecutive months;

(3)  a number of convictions equivalent to the number of offences established in accordance with section 3, in respect of one or more offences determined in Division III of Schedule 1 entails ineligibility for public contracts for the period indicated in that Division, if those convictions occur within a period of 36 consecutive months.

Five convictions cumulated by a contractor or an associate of a contractor within a period of 36 consecutive months in respect of offences determined in part in Division II and in part in Division III of Schedule 1 entail ineligibility for public contracts for the period indicated in Division II of the Schedule.

O.C. 470-2012, s. 2.

3. The number of offences referred to in subparagraph 3 of the first paragraph of section 2 for a contractor that has reported, as an employer, hours of work to the Commission de la construction du Québec is established on the basis of the number of hours reported during the reference period and is

(1)  3 offences for a number of hours of work less than 50,000;

(2)  4 offences for a number of hours of work equal to or greater than 50,000 but less than 100,000;

(3)  5 offences for a number of hours of work equal to or greater than 100,000.

The number of offences is 3 in the case of a contractor that has not reported any hour of work to the Commission during the reference period.

The reference period corresponds to 12 monthly consecutive periods of work ending on the last Saturday in August of the calendar year prior to the year in which the last considered conviction occurred.

O.C. 470-2012, s. 3.

CHAPTER II OFFENCES THAT MAY BE DISREGARED BY THE MINISTER OF REVENUE

4. A conviction for an offence referred to in Divisions II and III of Schedule 1 may, in accordance with section 21.2.1 of the Act respecting contracting by public bodies (chapter C-65.1), be disregarded by the Minister of Revenue in the computation of the number of offences required for the purposes of sections 2 and 3.

O.C. 470-2012, s. 4.

CHAPTER III COMMUNICATION OF INFORMATION TO THE CHAIR OF THE CONSEIL DU TRÉSOR

5. The following bodies must, in accordance with the provisions of this Chapter, communicate to the Chair of the Conseil du trésor the information provided for in paragraphs 1 to 3 of section 21.7 of the Act that is in their possession:

(1)  the Agence du revenu du Québec;

(2)  the Autorité des marchés financiers;

(3)  the Director of Criminal and Penal Prosecutions.

O.C. 470-2012, s. 5.

6. Each body referred to in section 5 must designate from among the members of its personnel those who are authorized to send the information referred to in that section to the employees of the secretariat of the Conseil du trésor designated by the Chair of the Conseil du trésor.

O.C. 470-2012, s. 6.

7. The information referred to in section 5 must be sent by electronic means, using the form provided by the secretariat of the Conseil du trésor, within

(1)  10 working days after the date on which the judgment convicting for an offence determined in Division I of Schedule 1 becomes final;

(2)  10 working days after the thirtieth day of the date on which the judgment that is the last relevant conviction for an offence determined in Division II or III of Schedule 1 becomes final.

Despite the first paragraph, where a request has been made to the Minister of Revenue under the second paragraph of section 21.2.1 of the Act in respect of a conviction which, if it was considered, would cause the minimum number of offences required for the purposes of sections 2 and 3 to be attained, the information referred to in section 5 must be sent within 10 working days after the date of the decision of the Minister of Revenue denying the contractor’s request.

O.C. 470-2012, s. 7; I.N. 2016-01-01 (NCCP).

CHAPTER IV OVERSIGHT AND MONITORING OF A CONTRACTOR INELIGIBLE FOR PUBLIC CONTRACTS

DIVISION I ESTABLISHMENT OF MEASURES

8. The oversight measures for an ineligible contractor that may be applied in the course of the performance of a public contract include

(1)  surveillance of the costs and deadlines for the goods provided, the planned services or work carried out in conformity with the public contract;

(2)  surveillance of the progress reports produced by the contractor in accordance with the terms and conditions of the public contract;

(3)  audit into any charges and hours billed in conformity with the terms and conditions of the public contracts and the amendments made to it;

(4)  audit into the financial information contained in the progress reports produced by the contractor in accordance with the terms and conditions of the public contract;

(5)  audit into the contractor’s compliance with the formalities provided for in laws and regulations in fiscal matters in the course of the performance of the public contract;

(6)  recommendations made to the contractor with respect to the corrections the contractor could make following the audit or surveillance work done by the accredited person; and

(7)  follow-up of the implementation, by the contractor, of the recommendations made following the audit or surveillance work by the accredited person.

O.C. 470-2012, s. 8.

DIVISION II OVERSIGHT AND MONITORING CONTRACT

9. For the purposes of sections 21.3 and 21.5 of the Act, the body that is a party to a public contract is bound to designate the accredited person who will be responsible for the application of the oversight and monitoring measures determined, as the case may be, by the Conseil du trésor or the minister responsible for the body.

Where security to guarantee the carrying out of a public contract is furnished by the ineligible contractor, the body must favour the designation of an accredited person who is in the employ of the surety.

The body must so inform the secretariat of the Conseil du trésor.

O.C. 470-2012, s. 9.

10. An accredited person may not, under penalty of accreditation,

(1)  carry out an oversight and monitoring contract with an ineligible contractor if the person has a direct or indirect interest in that contractor that is likely to put his or her personal interest in conflict with the obligations resulting from his or her mandate;

(2)  obtain assistance in the performance of such contract from a person who has a direct or indirect interest in the ineligible contractor subject to the oversight and monitoring measures that is likely to put his or her personal interest in conflict with the obligations resulting from his or her functions.

This section does not apply to an accredited person referred to in the second paragraph of section 9.

O.C. 470-2012, s. 10.

11. The application of the oversight and monitoring measures is preceded by the conclusion of a contract between the ineligible contractor and the accredited person responsible for applying the measures.

The oversight and monitoring contract must be completed from the standard contract prepared by the secretariat of the Conseil du trésor. That contract must specify the measures to be applied, indicate the hourly rate for fees payable to the accredited person and, if applicable, to the persons assisting the accredited person and, if applicable, provide for the payment by the contractor of an advance to the accredited person which may not exceed the amount of $5,000.

The fees are established according to an hourly basis agreed upon by the body that is a party to the public contract and the accredited person. The hourly rate may not exceed $175 and the amount payable for each fraction of an hour is calculated pro rata to the hourly rate agreed upon.

A copy of the duly signed oversight and monitoring contract must be sent without delay to the body by the accredited person.

A contractor who does not enter into the oversight and monitoring contract in accordance with this section and the conditions set pursuant to the second paragraph of section 21.3 of the Act is deemed to have defaulted on performance of the public contract.

For the purposes of this Division, an oversight and monitoring contract entered into by a for-profit legal person established for a private interest or a general, limited or undeclared partnership within which the designated accredited person practises his or her profession is deemed to be a contract entered into by the accredited person.

O.C. 470-2012, s. 11.

12. An ineligible contractor must take all necessary measures to enable the accredited person to adequately apply the measures to which the contractor is subject.

Without restricting the generality of the foregoing, the contractor must, upon request by the accredited person, send the latter all information and documents necessary for the application of those measures.

O.C. 470-2012, s. 12.

13. The oversight and monitoring measures apply until the public contract or the period of ineligibility for public contracts has ended, whichever comes first. After the end, a 30-day period is allocated to the accredited person to produce the final report referred to in section 15.

O.C. 470-2012, s. 13.

14. The accredited person must, as soon as possible, notify the body that is a party to the public contract of any contravention of the provisions of the oversight and monitoring contract by the ineligible contractor, including non-payment of fees. The body then sends a written notice to the contractor, enjoining the contractor to remedy the contravention within the time set by the body.

A contractor who does not remedy the contravention within the time set is deemed to have defaulted on performance of the public contract.

O.C. 470-2012, s. 14.

15. The accredited person must periodically report to the body that is a party to the public contract and to the ineligible contractor on the application of the oversight and monitoring measures.

The accredited person must also produce in triplicate a final report on the performance of the oversight and monitoring contract, including in particular a description of the actions taken and observations made by the accredited person within the context of that contract.

The final report must be sent to the contractor, to the body and to the Conseil du trésor or the minister responsible for the body, depending on whether the oversight and monitoring measures were imposed under section 21.3 or 21.5 of the Act.

O.C. 470-2012, s. 15.

CHAPTER V ACCREDITATION OF PERSONS RESPONSIBLE FOR APPLYING OVERSIGHT AND MONITORING MEASURES

DIVISION I PROCEDURE AND CONDITIONS FOR THE ISSUE OF ACCREDITATION

16. The accreditation allowing to apply the oversight and monitoring measures to a contractor ineligible for public contracts may be issued to a person who

(1)  is a member of the Ordre des comptables professionnels agréés du Québec or is in the employ of a legal person or a corporation legally authorized to become surety;

(2)  has a minimum of 10 years of experience in the carrying out of accounting audit mandates, including 5 years as project manager or main resource or a minimum of 10 years of experience as a subscriber or claims adjuster, including 5 years within a legal person or a corporation legally authorized to become surety;

(3)  holds a public accountancy permit issued by the professional order referred to in paragraph 1 or, if the person is in the employ of a legal person or a corporation legally authorized to become surety, an undergraduate degree or a representative’s certificate – claims adjustment issued by the Autorité des marchés financiers;

(4)  within 5 years prior to the application for accreditation, has not been convicted of an indictable offence or offence listed in Schedule 1 or, if convicted, has been granted a pardon;

(5)  within 5 years prior to the application for accreditation, has not seen his or her accreditation cancelled by reason of a conflict of interest in the performance of an oversight or monitoring contract;

(6)  is not ineligible for public contracts;

(7)  is not in the employ of a contractor ineligible for public contracts.

O.C. 470-2012, s. 16.

17. To obtain accreditation, a person must

(1)  file an application on the form prepared for that purpose by the secretariat of the Conseil du trésor, duly complete it and send it to the Chair of the Conseil du trésor before the date indicated in the notice of accreditation broadcast in the electronic tendering system;

(2)  provide a document proving that the person is a member of the professional order referred to in paragraph 1 of section 16 or is in the employ of a legal person or a corporation legally authorized to become surety;

(3)  provide a copy of the public accountancy permit, university degree or certificate required under paragraph 3 of section 16;

(4)  provide a document issued by the Sûreté du Québec certifying that the data banks accessible to the Sûreté du Québec do not contain any information making it possible to establish the presence of an impediment referred to in paragraph 4 of section 16;

(5)  meet the requirements provided for in paragraphs 2 and 5 to 7 of section 16;

(6)  pay the fees determined in section 18 for the examination of the application.

O.C. 470-2012, s. 17.

18. Non-refundable fees of $200 are required upon the filing of an application for accreditation or application for renewal.

O.C. 470-2012, s. 18.

19. The accreditation of a person is valid for 3 years as of its issue or renewal.

O.C. 470-2012, s. 19.

DIVISION II RENEWAL, SUSPENSION AND CANCELLATION OF ACCREDITATION

20. To renew accreditation, an accredited person must

(1)  file an application on the form prepared for that purpose by the secretariat of the Conseil du trésor, duly complete it and send it to the Chair of the Conseil du trésor at least 60 days before the expiry of the accreditation;

(2)  provide the relevant documents referred to in paragraphs 2 to 4 of section 17 proving that, on the date of the application for renewal, the person meets the requirements provided for in paragraphs 1, 3 and 4 of section 16;

(3)  pay the fees determined in section 18 for the examination of the application.

O.C. 470-2012, s. 20.

21. The Chair of the Conseil du trésor suspends the accreditation of a person who

(1)  is temporarily struck off the roll of the professional order to which the person belongs; or

(2)  is ineligible for public contracts or is in the employ of a contractor ineligible for public contracts.

The suspension of an accreditation does not result in an extension of its validity period.

O.C. 470-2012, s. 21.

22. The Chair of the Conseil du trésor cancels the accreditation of a person who

(1)  is permanently struck off the roll of the professional order referred to in paragraph 1 of section 16 to which the person belongs or is no longer in the employ of a legal person or a corporation legally authorized to become surety;

(2)  is convicted of an indictable offence or offence set out in paragraph 4 of section 16;

(3)  has made a false statement upon applying for or renewing accreditation; or

(4)  has, or is assisted by a person having, in contravention of section 10, a direct or indirect interest in the ineligible contractor in respect of whom the person applies oversight and monitoring measures.

O.C. 470-2012, s. 22.

DIVISION III DECISIONS REGARDING ACCREDITATION

23. The Chair of the Conseil du trésor must, before refusing to issue or renew accreditation, or before suspending or cancelling it, inform in writing the person concerned of the grounds for such decision.

O.C. 470-2012, s. 23.

24. The person concerned may, within 30 days of receiving the grounds for the decision of the Chair of the Conseil du trésor, send the Chair any comments on those grounds.

O.C. 470-2012, s. 24.

25. Within 30 days following, as the case may be, the expiry of the 30-day period provided for in section 24 or receipt of the comments of the person concerned, the Chair of the Conseil du trésor upholds or not his or her decision and so informs the person concerned in writing. If the Chair fails to act within the prescribed time, accreditation must be issued, renewed or maintained, as the case may be.

O.C. 470-2012, s. 25.

26. The Chair of the Conseil du trésor informs the bodies that are parties to public contracts with an ineligible contractor subject to oversight and monitoring measures applied by the person whose accreditation was not renewed or was suspended or cancelled so that they may designate another accredited person who will take over the application of the current measures.

The provisions of Division II of Chapter IV apply with the necessary modifications.

O.C. 470-2012, s. 26.

CHAPTER VI FINAL

27. (Omitted).

O.C. 470-2012, s. 27.

SCHEDULE 1

(s. 1)

OFFENCES AND PERIOD OF INELIGIBILITY

Replaced, 2012, chapter 25, s. 91; see chapter C-65.1, Sch. I

O.C. 470-2012, Sch. 1; S.Q. 2012, c. 25, s. 91.

REFERENCES

O.C. 470-2012, 2012 G.O. 2, 1439

S.Q. 2012, c. 11, s. 32

S.Q. 2012, c. 25, s. 91