r-2.2.0.0.3, r. 1 - Voluntary Reimbursement Program

À jour au 2 novembre 2015

Ce document a valeur officielle.

chapter R-2.2.0.0.3, r. 1

Voluntary Reimbursement Program

Act to ensure mainly the recovery of amounts improperly paid as a result of fraud or fraudulent tactics in connection with public contracts

(chapter R-2.2.0.0.3, ss. 3 and 4).

DIVISION I PROGRAM PURPOSE AND MANAGEMENT

1. The Voluntary Reimbursement Program makes it possible for every natural person and every enterprise to reimburse certain amounts improperly paid by a public body in the course of the tendering, awarding or management of a public contract entered into after 1 October 1996 in relation to which there may have been fraud or fraudulent tactics.

M.O. 3697, s. 1.

2. The Program is under the management of the person designated by the Government to act as the “Program Director” (hereafter the “Director”) pursuant to section 6 of the Act to ensure mainly the recovery of amounts improperly paid as a result of fraud or fraudulent tactics in connection with public contracts (chapter R-2.2.0.0.3) (hereafter the “Act”).

M.O. 3697, s. 2.

3. The functions of the Director are to receive and analyse reimbursement proposals from natural persons and enterprises wishing to avail themselves of the Program, make recommendations to the Minister and attempt to bring the public bodies for which a settlement proposal has been made to an agreement with the natural person or enterprise. For that purpose, the Director helps the parties communicate, negotiate, identify their interests, assess their positions and reach a mutually satisfactory settlement.

M.O. 3697, s. 3.

4. Anything said or written within the framework of the Program is confidential and cannot be admitted in evidence unless the Minister and the natural person or enterprise participating in the Program agree otherwise.

The Director, Minister, public body, enterprise or natural person participating in the Program, or any person representing them, cannot be compelled to disclose anything they hear or learn within the framework of the Program. Nor can they be compelled to produce a document prepared or obtained within that framework before a court of justice, before a person or body of the administrative branch exercising adjudicative functions or before any other person or body having the power to summon witnesses, gather evidence and require the production of documents.

M.O. 3697, s. 4.

5. The Director may be assisted by any person in the performance of duties. In that case, the person has the same protections and obligations as the Director.

M.O. 3697, s. 5.

DIVISION II PROGRAM PARTICIPATION CONDITIONS

6. Every natural person or enterprise wishing to participate in the Program must undertake in writing to abide by its rules.

M.O. 3697, s. 6.

7. The fact that a natural person or an enterprise participates in the Program does not constitute an admission of liability or of a fault committed by the natural person or enterprise.

M.O. 3697, s. 7.

8. Every natural person or enterprise participating in the Program acknowledges that revealing information or sending documents within the Program framework does not restrict in any manner whatever a public body’s capacity to bring civil proceedings against the natural person or enterprise in relation to public contracts for which a settlement has not been reached under the Program or to which the Act does not apply.

Every natural person or enterprise acknowledges that participation in the Program and the conclusion of an agreement under it in no manner protects the natural person or enterprise, or its officers, against any penal or criminal proceedings that have been or may be brought in connection with public contracts entered into by the natural person or enterprise.

M.O. 3697, s. 8.

DIVISION III GENERAL RULES

9. The Director determines the rules governing analysis and negotiation of each settlement proposal, sets the timeframes and informs the parties of them.

M.O. 3697, s. 9.

10. The Director may extend for not more than 30 days the time periods set out in sections 20 and 28 of the Program if the extension is considered by the Director to be conducive to an agreement being reached and does not operate to prevent other time periods under the Program from being varied.

M.O. 3697, s. 10.

11. The Minister may extend any time period under the Program if the extension is considered by the Minister to be conducive to an agreement being reached.

M.O. 3697, s. 11.

12. The entire process of analysing and negotiating a settlement proposal is confidential and limited to the parties.

The Director may, however, authorise a person to participate in a meeting if attendance by the person is considered necessary by the Director.

M.O. 3697, s. 12.

DIVISION IV PROGRAM OPERATION

13. Every natural person or enterprise wishing to participate in the Program must send the notice of intent form required by the Program to the Director not later than 1 November 2016, at the following address:

Bureau de l’Administrateur du programme de remboursement volontaire

500, boulevard René-Lévesque Ouest, bureau 7.300

C. P. 23

Montréal (Québec) H2Z 1W7

On receiving the notice, the Director makes it available to the Minister.

M.O. 3697, s. 13.

14. The notice of intent must indicate

(a)  the name of the natural person or the enterprise wishing to participate and where applicable, the name of its representative;

(b)  foran enterprise, a list of every natural or legal person for which a discharge is required;

(c)  the contact information of the natural person or of the principal establishment of the enterprise and where applicable, of its representative;

(d)  a list of the public bodies for which the natural person or the enterprise intends to submit a reimbursement proposal and for each public body, the year or years covered by the proposal; and

(e)  the natural person’s or the enterprise’s willingness to have his, her or its participation in the Program made public.

The notice of intent must be sent with a letter signed by the natural person, or by a duly authorised person in the case of an enterprise, confirming that the natural person or the enterprise undertakes, unconditionally, to abide by the Program rules.

M.O. 3697, s. 14.

15. In the event that a natural person or an enterprise wishes to be sure that the list of bodies contracted with since 1 October 1996 is complete, the natural person or enterprise may request that the Director publish within 30 days, on the Director’s website, a notice addressed to all public bodies to the effect that the natural person or enterprise will be making a proposal to the public bodies specified in the notice of intent. The Director informs the Minister before publishing such a notice.

The notice must also state that if public bodies not appearing on the list consider they have improperly paid amounts to the natural person or enterprise, they must so inform the Director and the Minister within 90 days after the notice is published. On receiving such information, the Minister makes it available to the Director.

Public bodies availing themselves of this section must also comply with sections 17 to 19.

The Director informs the natural person or enterprise that a public body not appearing in the notice has availed itself of this section and invite the natural person or enterprise to take that fact into account in the settlement proposal.

M.O. 3697, s. 15.

16. The Minister must, within 30 days, inform, in writing, each public body named in the notice that a natural person or enterprise intends to make a settlement proposal to the public body within the framework of the Program for contracts awarded in the years specified in the notice of intent.

M.O. 3697, s. 16.

17. A public body informed of a notice of intent must take the necessary steps to

(a)  prepare a list of all the contracts awarded to the natural person or enterprise in the years covered by the notice;

(b)  as certain the amounts it may have improperly paid to the natural person or enterprise that sent the notice of intent for the years specified in the notice; and

(c)  establish the main facts on the basis of which it is able to ascertain the amounts that may have been improperly paid by it.

The public body must compile as soon as possible all documents enabling it to establish amounts owing to it.

M.O. 3697, s. 17.

18. Not later than 60 days after being informed of a notice of intent, a public body must send to the Minister the name and contact information of its representative, if that has not already been done.

M.O. 3697, s. 18.

19. The information and documents compiled by the public body must be made available to the Minister on request.

M.O. 3697, s. 19.

20. Within 30 days after filing a notice of intent, a natural person or enterprise must file a settlement proposal with the Director, providing for each public body named in the notice

(a)  a list of all contracts awarded for each year specified in the notice, regardless of whether they are covered by a settlement proposal;

(b)  a list of all the contracts covered by a settlement proposal, the year of signature, all the addenda and the total amount paid by the public body for each contract;

(c)  the settlement proposal and the method used to set the proposal amount; and

(d)  the terms of payment.

M.O. 3697, s. 20.

21. In addition to the information required under section 20, and within the same time period, a natural person or enterprise must send to the Director

(a)  the guarantees proposed to secure payment of the settlement proposal;

(b)  the terms of the discharge sought; and

(c)  if applicable, the terms of the public statement it intends to make if the settlement proposal is accepted.

M.O. 3697, s. 21.

22. A cheque for an amount equal to 2% of the amount offered must be sent to the Minister when the settlement proposal is sent to the Director. The amount will be used to pay the costs incurred in analyzing the settlement proposal and for participation in the Program. The amount is non refundable.

If the settlement proposal of a natural person or enterprise is accepted, a lump-sum amount equal to 10% of the accepted proposed must be added to cover Program costs. The amount of the deposit initially submitted is deducted from this amount.

M.O. 3697, s. 22.

23. Once filed, a settlement proposal cannot be withdrawn.

M.O. 3697, s. 23.

24. A natural person or enterprise must undertake to make known to the Director all the facts and information relevant to an assessment of the settlement proposal. The proposal must also be verifiable, meaning that the natural person or enterprise must make all the documents and information showing that its proposal is reasonable available to the Director.

M.O. 3697, s. 24.

25. Any omission or refusal on the part of a natural person or an enterprise to disclose material facts, information or documents regarding the notice of intent or settlement proposal may entail the Minister withdrawing the natural person or enterprise from the Program after a recommendation by the Director to that effect.

M.O. 3697, s. 25.

26. The Director assesses the settlement proposal using any analysis considered relevant by the Director for the purpose of making a recommendation to the Minister concerning the settlement proposal. The Director may request additional explanations from the natural person or enterprise and in such circumstances a reply to the Director is mandatory.

M.O. 3697, s. 26.

27. If a positive recommendation to the Minister cannot be made, the Director must so inform the natural person or enterprise making the settlement proposal to allow the natural person or enterprise to make the necessary modifications so that the Director may make a positive recommendation.

M.O. 3697, s. 27.

28. A settlement proposal must be sent by the Director to the Minister not later than 150 days after the filing of a notice of intent. In addition to the information required by section 20, the settlement proposal must be sent with the Director’s preliminary recommendation.

M.O. 3697, s. 28.

29. The Director must also send the information required by section 21 to the Minister.

M.O. 3697, s. 29.

30. Within 30 days after receiving a settlement proposal, the Minister must send to the public body the issues in the proposal that concern the body, along with the total amount proposed by the natural person or enterprise.

M.O. 3697, s. 30.

31. Every public body for which a settlement proposal is made must, within 60 days after receiving it, inform the Minister in writing of its agreement or disagreement with the portion of the proposal that concerns it. In the event of disagreement, the notice of refusal must state the issues in the settlement proposal with which the public body is not in agreement, set out the main facts in support of the disagreement and contain a counter proposal.

On receiving a notice of refusal, the Minister makes it available to the Director.

A public body failing to send the notice of refusal within the required time is deemed to have accepted the settlement proposal.

M.O. 3697, s. 31.

32. The Director may, after informing the Minister, communicate with a public body that has sent a notice of refusal to obtain additional information, including the information compiled by the public body under section 17 of the Program.

M.O. 3697, s. 32.

33. Within 30 days after receiving one or more notices of refusal, the Director may convene the interested parties to a conciliation meeting. The Director invites the Minister to attend any conciliation meeting.

M.O. 3697, s. 33.

34. Conciliation must take place within a maximum of 150 days following receipt of a settlement proposal by the Minister.

M.O. 3697, s. 34.

35. Not later than 30 days before the deadline for a vote to be held under section 37, the Director must inform the Minister of his intention to maintain or modify his preliminary recommendation on the settlement proposals.

If the Director modifies his preliminary recommendation, the Minister must inform the public bodies concerned.

M.O. 3697, s. 35.

36. If the Director cannot make a favourable recommendation on a settlement proposal in its entirety, the Minister after informing the Director may have the public bodies vote only on the portions of the proposal that have received a favourable recommendation from the Director, or on the proposal in its entirety.

M.O. 3697, s. 36.

37. The public bodies for which a settlement proposal has been made must vote on the proposal within 210 days after it is received by the Minister.

M.O. 3697, s. 37.

38. A vote on the settlement proposal is not required if the proposal concerns only government departments, if no notice of refusal has been sent to the Director, or if no notice of refusal is still outstanding when the Director makes his final recommendation.

M.O. 3697, s. 38.

39. Each public body has one voting right for each dollar that concerns it in the amount covered by a settlement proposal submitted for a vote by the Minister.

M.O. 3697, s. 39.

40. To be accepted, a settlement proposal must be approved by public bodies holding at least 2/3 of the voting rights.

M.O. 3697, s. 40.

41. The Minister must determine the appropriate voting procedure in each case.

M.O. 3697, s. 41.

42. The Minister must inform the Director and the natural person or enterprise of the vote results.

M.O. 3697, s. 42.

43. Once accepted, the settlement proposal constitutes a transaction.

M.O. 3697, s. 43.

44. If a settlement proposal is accepted, the Minister must sign a discharge on behalf of the public bodies involved and send it to the natural person or enterprise after full payment has been made, or at any other previous time if the Minister is satisfied with the guarantees proposed.

If a natural person or enterprise obtains a discharge on the basis of false statements or a disclosure that is clearly incomplete, the discharge is without effect as regards the contracts for which false statements were made or for which there was clearly incomplete disclosure.

The Minister keeps the amounts paid by the natural person or enterprise, after deductingany amounts that may become payable as damages by the natural person or enterprise.

M.O. 3697, s. 44.

DIVISION V FINAL

45. This Program comes into force on 2 November 2015 and ends on 1 November 2017.

M.O. 3697, s. 45.

46. At the termination of the Program, the Director must destroy all documents and information conveyed to him by the parties. All documents prepared by the Director and the Director’s team within the framework of the Program must likewise be destroyed, except documents of an administrative nature that detail the use of the resources necessary to carry out the Director’s mandate.

M.O. 3697, s. 46.

47. Within 6 months after the end of the Program, the Minister must report to the Government on its implementation. The report must state the names of the natural persons or enterprises having participated in the Program, the names of the public bodies involved and the aggregate amount reimbursed.

The report is to be tabled within the following 30 days in the National Assembly or, if the Assembly is not sitting, within 30 days of resumption.

M.O. 3697, s. 47.

48. This Program may be amended at any time by the Minister. It must be published on the websites of both the Ministère de la Justice and the Director.

M.O. 3697, s. 48.

REFERENCES

M.O. 3697, 2015 G.O. 2, 2968