The Minister responsible for Infrastructure, Jonatan Julien, has embarked on an ambitious reform of the rules for awarding public contracts without focusing too much on the lessons of recent history in terms of collusion. Bill 62 has good intentions: improving efficiency in the delivery of infrastructure projects by making the private sector a partner, reducing delays and making savings. If only it were that simple…
It’s crazy how the passage of time impacts our collective resilience. Just 15 years ago years ago, when Quebec was drowning in corruption and collusion scandals which gave birth to the Commission of Inquiry into the Granting and Management of Public Contracts in the Construction Industry (CEIC), a bill to Such candour would have caused a collective stir.
Martine Valois, professor of law at the University of Montreal and member of the public committee monitoring the recommendations of the Charbonneau commission, is one of the few to sound the alarm. Me Valois expressed his fears in The duty with regard to a bill that has nothing more and nothing less than the potential to legalize collusion. “It’s as if we said to ourselves: ‘They forgot. The Charbonneau commission is over, it’s been 10 years.” », she observes.
The “partnership contracts” envisaged by the Legault government are in question. They will replace formal tenders for complex or larger projects, which represent 20% of the total. The objective is laudable, namely to give public organizations more flexibility and agility in this type of work. The chosen companies will even be able to participate in the design of the projects. The private company believes that it will be able to advise the government in advance to avoid imposing unnecessarily costly requirements. Minister Julien uses a powerful formula that borders on simplism: projects will go 25% faster and cost 15% less. We will have to remember this ambitious promise when we take stock.
These beautiful theoretical flights will collide head-on with reality. Private contracts are sometimes useful and necessary, but they come with the risk of cronyism and political interference. For the future system to deliver on its promises of efficiency, concrete expertise will be required within public organizations to judge upstream quality and downstream performance, and this is precisely where the problem lies.
From the Charbonneau commission to this day, it is an Achilles heel in public administrations. The low attractiveness of the public sector, combined with the labor shortage, contributes to weakening public expertise. Bill 62 will increase the influence of large firms over contract requirements. We can already count them on our 10 fingers, or almost. What’s more, public bodies lacking expertise will still depend on the private sector to exercise their monitoring role. It’s like reliving certain parts of the Charbonneau commission.
Minister Julien wanted to be reassuring during the study of Bill 62 in parliamentary committee. He even said he was ready to amend the project following the observations of the CEO of the Public Procurement Authority (AMP), Yves Trudel. The AMP also plays a role as a shield against the risks of collusion, but the organization cannot perform miracles. Collusion, a tacit agreement between two actors or a handful of them, is extremely difficult to prove. Investigations require whistleblowers and fine police expertise that the Permanent Anti-Corruption Unit, UPAC, seeks to rebuild.
Bill 62 thus arrives in a particular context.
Over the past three years, the number of over-the-counter contracts has jumped by 30% in Quebec, a situation that concerns the CEO of the AMP. As part of the study of the bill, Yves Trudel indicated that the AMP was increasingly observing the presence of organized crime, collusion and territorial sharing in the context of its surveillance activities.
Mr. Trudel is not worried about Bill 62, because he subscribes to the government’s objective of increasing competition. The Office of the Auditor General as well as the President of the Treasury Board (and former prosecutor at the Charbonneau Commission), Sonia LeBel, recalled that the risk of collusion is not associated with a particular method of awarding public contracts. .
This is all true. The fact remains that Bill 62, in its current form, opens the door to an insidious phenomenon. Over-the-counter contracts are fertile grounds for cronyism and opacity, and they can easily lead to collusion in the absence of vigilance and appropriate control mechanisms. Foreign experience shows that this partnership philosophy has stimulated competition and competitiveness, but nothing is less certain in a Quebec where risk factors are numerous.