New developments at the Autorité des marchés publics: what should businesses expect?

On June 2, 2023, the Autorité des marchés publics (AMP) will implement changes to the validity of the authorization to contract for enterprises entering into public contracts and public subcontracts.

These changes take effect with the coming into force of certain provisions of 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,^[1] assented to on June 2, 2022.

This article introduces these changes and their possible consequences for enterprises covered by the Act respecting contracting by public bodies (ARCPB).^[2]

Authorization to contract

The AMP is a Quebec authority responsible for overseeing enterprises that wish to enter into contracts and subcontracts with or respond to calls for tenders from public bodies identified in the ARCPB.^[3] An enterprise that wishes to enter into a contract or subcontract with a public body involving an expenditure equal to or greater than the amount determined by the government^[4] must obtain an authorization for that purpose from the AMP.^[5]

Once the enterprise has obtained this authorization, it is listed in the register of enterprises authorized to contract and subcontract (REA). Provided it continues to meet the eligibility requirements for the REA, the registered enterprise remains authorized to enter into a public contract or a public subcontract until the authorization expires.

Essentially, the implemented changes concern the validity of this authorization to contract.

1. Extension of validity period of authorization.

An authorization to contract with a public body will now be valid for five years instead of three.^[6] As a result, enterprises with an authorization valid until June 2, 2023 will see their authorizations automatically extended by two years.^[7] Enterprises affected by this change will be contacted directly by the AMP by email.^[8] They should save this email, since it can serve as proof to confirm their authorization to contract.^[9]

However, if an enterprise's authorization to contract expired before June 2, 2023, the automatic extension will be granted only if the enterprise applied for renewal at least 90 days before the authorization expired.^[10] An application for renewal submitted after the deadline is now considered to be a new application for authorization.^[11]

2. New requirement: annual updating.

To remain authorized to contract, an enterprise covered by the ARCPB must now, on each anniversary date of its authorization to contract, update the documents and information already provided to the AMP, such as:

• its business relationships
• Quebec business number (NEQ)
• address(es) of its head office or establishments^[12]

Exceptionally for this year, the first update must be made no later than July 2, 2023, i.e., 30 days after the obligation came into force.^[13] A companion guide will be made available as of June 2, 2023 providing instructions for the update.^[14]

In addition to submitting the annual update, enterprises also must continuously notify the AMP of any change to the information previously provided in its application. The new deadline for filing this notice is now 30 days following the change, instead of the previous deadline of 15 days following the end of the month in which the changes occurred.^[15]

If these deadlines are not met, the AMP may cancel or suspend a request for authorization^[16] on those grounds.

3. Publication of removal of authorization in the REA.

The final new development to watch for is some new information that will appear in the REA. From now on, the register will indicate the suspension or expiry of an authorization if it occurs during the performance of a public contract or a public subcontract.^[17]

It will also indicate whether an oversight or monitoring measure has been imposed on the enterprise by the AMP until such time as the performance of the contract or subcontract comes to an end.

The main takeaway for your business.

Thanks to these recent changes to AMP operations, enterprises will benefit from a longer period of validity for authorization to contract, but will have to be more proactive in disclosing changes during the period of validity of their authorization.

For any further advice or assistance concerning your public contracts or public subcontracts as well as maintaining or renewing your authorization to contract, please contact a member of Gowling WLG's Projects and Infrastructure teams: Luc Lissoir, Nicolas Cayouette, Pierre Lissoir, Anne-Marie Brien, Daniel Jordan and Joey Suri.