On May 9, 2024, the Minister responsible for Infrastructure tabled Bill 62, An Act mainly to diversify the acquisition strategies of public bodies and to offer them more agility in carrying out their infrastructure projects ("Bill 62").
This bill is part of the Government of Quebec's approach to modernizing the normative framework for the delivery of public infrastructure projects, by promoting a collaborative approach. According to the minister responsible, the objective is to build 20% to 25% faster, and to pay 15% to 20% less1.
The highlights of Bill 62 are as follows:
- Collaborative delivery models. A new type of
contract, called a partnership
contract2, is proposed for the construction of
public infrastructure. In this scenario, a public body retains a
contractor through a collaborative approach and entrusts it with
various responsibilities for carrying out the project. A
design-build contract3 is considered a partnership
contract when it takes a collaborative approach.
A collaborative approach under Bill 62 may include holding bilateral workshops, pooling resources and information related to the project, and consensual sharing of risks and, as the case may be, savings generated or gains and losses incurred during the term of the contract.
The partnership contract may be entered into by the Minister of Transport, by the Société québécoise des infrastructures, or by any other public body, to the extent authorized by the minister responsible for the latter.
- Solution to unsuccessful tenders. Bill 62 amends section 13.1 of the Act respecting contracting by public bodies (ACPB) by adding an exception allowing public bodies to enter into a contract by mutual agreement under certain conditions after an unsuccessful call for tenders, when no compliant bid has been submitted, without having to publish a notice of intent.
- Interim arbitration. A new remedy is introduced allowing an application to be made to the court to set aside a decision rendered by a third-party decision-maker following an adjudication relating to construction work carried out on behalf of a public body. These new provisions will eventually be part of the accelerated payment and dispute resolution measures in the construction industry introduced in 2022 by the Act mainly to promote Québec-sourced and responsible procurement by public bodies, to reinforce the integrity regime of enterprises and to increase the powers of the Autorité des marchés publics. It should be noted that this regime is not yet in force.
- Increased powers for the AMP4. The AMP is given additional powers to audit the integrity of a company subject to supervision while limiting the communication of information obtained during such audits.
It should be noted that the tabling of the bill in the National Assembly is only the first step in the progress of Bill 62 until its adoption. The next step will be public consultations.
This article is but the first in a series of publications that will focus on the progress of this major reform. We invite you to stay tuned for our next publications.
Footnotes
1. Contrats publics | Plus vite, moins cher : Québec veut devenir « sexy » | La Presse
2. The concept of a public-private partnership contract is abolished.
3. The term used in the ACPB is "mixed contract for construction work and professional services".
4. Autorité des marchés publics
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