Beyond the controversies, the Charbonneau Commission shone the spotlight on the rules of the game in the area of public-contract awards.
Drawing on their extensive experience in the area, Liviu Kaufman and Clémentine Sallée, Blakes partners in Montreal, set the stage for current and future tenderers with a few lessons and advice to keep in mind.
Don't pretend to be an expert
It is impossible to summarize in a few lines the numerous regulations, laws, decrees and interpretations adopted before, during and after the Charbonneau Commission.
"We do not leave anything to chance," says Clémentine, who practises in the areas of infrastructure, construction and public procurement. "We see many large industry players hiring internal specialists to accompany their procurement team, while remaining on the lookout for new developments. It is a sound practice, but not feasible for everyone."
What can "middle of the pack" players whose size cannot justify hiring a full-time specialist do? "Turn to the expertise of external advisers who can guide you by ensuring that your bid is not vitiated due, for example, to a vital omission," says Liviu, whose practice focuses on commercial litigation.
Addressing the past to build the future
The business practices of numerous Quebec businesses that participated in public contracts have likely not always been beyond reproach.
"To pretend that we can simply wipe the slate clean and start afresh would be a mistake," says Clémentine. "We need to not only take the skeletons out of the closet, but also clean the closet and resist the temptation to put things back in." In short, it is essential to identify the zones, areas or individuals that could have jeopardized the integrity of businesses interested to tender on projects.
In order to address the past and prepare for the future, participation in the voluntary reimbursement program implemented by the Quebec government may prove to be a relevant solution.
Rethinking the model
Liviu and Clémentine agree that the "lowest-bidder" rule is being put into question.
"Speaking with our colleagues in the industry, we see that a shift is underway in this respect. And that's a good thing," says Liviu.
"The reality of business practices and the accountability of those who obtain or award public contracts must go hand in hand and not be on opposite ends of the spectrum," says Clémentine. It is also important that public and private partners openly engage in a comprehensive and broader discussion regarding public procurement. The idea here is to be proactive rather than listening to the debate as a passive bystander.
Read more:
Public Procurement in Quebec: New Authorization Regime under Judicial Scrutiny
Update: New Measures Adopted by Quebec to Promote Integrity in Public Contracts
New Federal Integrity Regime: Two Steps Forward, One Step Back