5. The importance of contract performance in detecting, preventing and managing the risks of fraud and bribery in Quebec

While the design and award phases of public procurement are subject to particular attention in many OECD member countries, including Canada and especially Quebec, the vulnerability of the contract performance phase to corruption risks has long been neglected.

Yet, it is in the latter case that the tangible effects of corruption, whatever its origin, become apparent either through poor or suboptimal performance of expected services or through the granting of undue payments. Moreover, some studies suggest that bribery or fraud related to contract performance generate the largest amounts of undue payments (Piga, 2011[1]).

In response to cases of corruption in the performance of public procurement and the practices updated in response to the Charbonneau Commission, the Government of Quebec has developed numerous instruments to better insulate public procurement from the risks of corruption affecting the contract performance phase.

First, the Quebec government has strengthened its legislative arsenal by increasing the number of measures related to monitoring the performance of public procurement to eliminate companies guilty of wrongdoing during the contract performance phase. For example, the Act respecting contracting by public bodies, last revised in 2017, aims, among other objectives related to fairness, transparency and efficiency, to promote the following fundamental principles:

  • public confidence in public procurement by demonstrating the integrity of competitors

  • implementation of quality assurance systems which cover the supply of goods, services or construction works required by public bodies

  • accountability based on the responsibility of the heads of contracting authorities and on the proper use of public funds.

The contract performance phase is therefore of paramount importance as it helps to build public confidence in public procurement and provides the opportunity to implement quality assurance systems and accountability mechanisms. Indeed, achieving these objectives depends on the framework defining the relations between public and private actors during the performance of procurement contracts.

Stakeholder accountability for confirmed acts of corruption in the conduct of public procurement has been widely developed in Quebec. Various laws aiming to create a robust structure for analysing and monitoring public procurement (the 2011 Anti-Corruption Act, the 2012 Integrity in Public Contracts Act, and most recently the Act facilitating oversight of public bodies' contracts and establishing the Autorité des marchés publics of December 2017) have been passed and are applicable to all public procurement.

As of January 2012, the main provisions of the ACPB related to sanctions imposed on companies found guilty of offences in the performance of public procurement contracts also apply at the municipal level. Indeed, both the RENA and, more recently, contract authorisation, are instruments used in municipal public procurement.

They make it possible, as shown in Figure 5.1 below, to identify businesses that have been found guilty of offences relating to the performance of public procurement contracts or where there are serious doubts as to their ability to perform them with integrity and in a satisfactory manner.

The various legislative reforms have also created independent monitoring and investigative bodies or expanded the powers of existing entities. Many of these actors have, among other tasks, a role in monitoring contractual performance in public procurement. The Charbonneau Commission, in its Recommendation No. 1 on the creation of the AMP and the endowment of extensive powers over public procurement, assigns particular importance to the possibility of assisting contracting authorities in their contractual management, including the performance of contracts entered into by public bodies. More specifically, the functions of the Public Procurement Authority include:

  • reviewing, on its own initiative, a contracting process or the performance of a contract, and making recommendations to the public body concerned

  • investigating the contractual management of a public body that has been designated by the Authority or the government. In this context, the Authority may make recommendations, terminate a contract or suspend its performance.

Although this increased scrutiny of public procurement is not yet operational (as it is dependent on the AMP CEO taking office), and therefore does not yet have any tangible effects, these successive reforms have all focused on strengthening the integrity of public procurement and creating a more transparent environment.

In addition, some public bodies have also implemented procedures to increase the oversight of public procurement contracts, including their performance. In order to ensure that the tasks of monitoring the enforcement of the statutory framework, verification and control are as efficient as possible and can effectively prevent the risks of bribery, these entities or units (AMP, TBS, Auditor General, BIG, etc.) nevertheless need to ascertain their priorities when it comes to reviews. As shown in Table 5.1 below, an average of 34 343 separate public procurement processes with a value above CAD 25 000 are conducted each year.

These processes sometimes result in several contracts, with 10% being contracts split into lots, or contracts with a performance period exceeding one year. These factors mean that the number of contracts subject to performance monitoring or control concerning transparency and integrity far exceeds the number of procurement processes conducted each year.

Examining even a 10% sample of all contracts would mobilise a very large number of resources. Consequently, an appropriate framework needs to define the parameters to be taken into account in identifying which contracts ought to be reviewed. In many OECD countries, to determine priorities of their audit activities, Supreme Audit Institutions have developed a risk-based methodology (Box 5.1).

As discussed further below, greater harmonisation of the principles defining the relationship between contracting authorities and suppliers, and the definition of standardised indicators, will enable the various institutions in charge of monitoring, control and audit activities to have better awareness of contracts where performance appears to be at risk. Thus a strategic assessment of contracts subject to monitoring, control or audit can be carried out.

However, these reforms and initiatives focus mainly on strengthening the monitoring of public procurement and less on the active participation of the actors directly involved in public procurement. However, the latter-contracting authorities and suppliers have a leading role in defining procurement procedures and strategies that are resilient to the risks of fraud and bribery.

The OECD Recommendation on Public Procurement (OECD, 2015[4]) assigns a central place to contract performance. Indeed, the transformation of public procurement, initially perceived as deriving from a purely administrative activity, into a strategic tool of public governance, is leading to greater attention on the entire public procurement cycle. Many of the reforms undertaken in OECD countries illustrate this significant change in the approach to public procurement, as illustrated by the mapping developed by New Zealand (Figure 5.2).

The primary objective behind strengthening the role of procurement officials in the management of contract performance is ensuring the accountability of the actors directly involved in public procurement, and providing assurance that it produces the expected results. However, this objective is directly threatened by excessive exposure to the risks of corruption. Thus, greater stakeholder accountability is essential to making public procurement more resilient to the risks of corruption.

The implementation of quality assurance systems and accountability mechanisms is central to the objectives of the ACPB. Nevertheless, the legislative provisions relating to the contract performance phase are brief and deal primarily with the procedures for contractual amendments.

The Regulations specific to certain categories of purchases (Regulation respecting certain supply contracts of public bodies, chapter C-65.1, r. 2; Regulation respecting certain service contracts of public bodies, chapter C-65.1, r. 4; Regulation respecting construction contracts of public bodies, chapter C-65.1, r. 5) provide the general principles applicable to the settlement of disputes related to public procurement contracts but do not detail the role of stakeholders.

In fact, each contracting authority is responsible for drawing up internal guidelines detailing the framework applicable to the management of public procurement, including the performance of contracts. A study by the Treasury Board Secretariat1 analysing the guidelines of public bodies shows that while some best practices were identified in the sample of contracting authorities selected, they are not systematically applied.

This heterogeneity of practices can be seen, for example, in the description of the role of the officer responsible for the enforcement of contractual rules (RARC), a central figure in each government agency with a leading role in the execution of public procurement contracts. Although some government agencies detail the specific duties of the RARC, the study notes that a number of entities simply refer to the applicable legislative framework.

These differences in the way public procurement operates make the risks of corruption more porous and more difficult to detect. The harmonisation efforts undertaken by the National Health Service (NHS) of Great Britain provide interesting insights into the accountability of actors and their roles in the fight against fraud and bribery (Box 5.2).

To consolidate government initiatives and ensure harmonisation of the roles and responsibilities of all actors directly involved in public procurement, the Government of Quebec could develop guidelines that define the roles and responsibilities of the various players and the key elements for identifying and preventing the risks of fraud or bribery.

Moreover, in some specific situations, other actors play a central role in the performance of public contracts. This is the case, for example, in the construction sector where a private intermediary, often a consulting engineering firm, is responsible for the daily monitoring of the construction site and for validating the progress of the work in accordance with contractual commitments.

To address this specific problem, a practical guide has been developed by the Treasury Board Secretariat (Treasury Board Secretariat, 2018[7]). Although it only briefly deals with the contract performance phase, the guide mentions the importance of ensuring that professional service providers carry out their work under the strict control of contracting authorities. However, several reports by the Quebec Auditor General, including the most recent from2017 (VGQ, 2017[8]), stress the important role of construction site inspectors in public works, and the problem caused by the dilution of responsibilities for contract performance verification.

Existing oversight arrangements such as the contract authorisation that must be obtained for public works contracts over USD 5 million and the resulting sub-contracts, do not apply to site inspectors, who formally have a contract separate to that of the construction company. Furthermore, the thresholds making service contracts subject to a contract authorisation procedure mean that site auditors, although directly related to the construction work, are not subject to the same formalities as the construction company.

The resources and technical expertise needed to monitor projects which are sometimes extremely complex is a problem common to many contracting authorities throughout the world, including in OECD countries. These functions are therefore often partly or entirely outsourced. Also, the more limited the resources of public entities, the more significant this issue becomes. In order to ensure stricter supervision of these activities, the city of Charleston in the United States has developed a specific programme for the accreditation of external inspectors in the field of construction (Box 5.3).

Given the central role of consulting engineering firms in the monitoring and performance of construction work, the Government of Quebec and more specifically the MAMH could consider various possibilities to supervise the activities of site inspectors and ensure that they participate in the honest and transparent conduct of public procurement. Among these options, the Quebec government could consider extending the scope of the authorisation to contract, or of a less onerous procedure, to all contracts directly or indirectly related to those exceeding the established thresholds.

Beyond highlighting proven fraudulent practices which emphasise the vulnerability of public procurement, no accurate estimate can be made on the proportion of corruption cases that remain undetected. Nevertheless, since the inherent objective of bribery or fraud is being undetectable, the definition of measures and means to strengthen the resilience of the entire public procurement cycle against potential corruption risks becomes all the more important.

Public procurement is particularly vulnerable to the risks of corruption and some sectors in which procurement officials operate, such as construction or health, are also among the most exposed to business integrity risks. These facts, which were brought to light by the Charbonneau Commission's investigation, are not unique to Quebec, and a report on foreign bribery shows that this problem is common in the construction sector in OECD countries (OECD, 2014[10]).

The evolution of the relationship between the public and private sectors in public procurement is a determining factor which, when taken into account, underlines the importance of implementing standard procedures for the management of contract performance. Indeed, numerous empirical studies (Aminian, Kirkham and Fenn, 2012[11]), (Lonsdale et al., 2010[12]) and (Bovaird, 2006[13])show that the influence of public actors progressively decreases as the delivery of services progresses and the related expenditure increases. This loss of influence increases in line with the complexity of public procurement, as evidenced by the recent reviews of public works and information technology contracts conducted by the Quebec Auditor General (VGQ, 2017[14]).

However, susceptibility to corruption risks is also based on the vulnerability of the environment in which stakeholders operate. Indeed, many analyses show that institutional quality is an important variable in exposure to corruption risks (OECD, 2013[16]). In the context of the performance of public procurement contracts, this institutional robustness depends in part on the rules and principles applicable to contractual relations. However, given the brevity of the legislative and regulatory provisions in Quebec dealing with the contract performance phase, these principles are left to the discretion of public bodies and the municipal actors.

In this sense, the development of a comprehensive framework defining the interactions between public actors and suppliers would help to ensure greater resilience to the risks of corruption affecting public procurement. Indeed, an Australian study highlights the benefits achieved by a strategic alignment of values in terms of the efficiency of anti-corruption measures (Australian Commission for Law Enforcement Integrity, n.d.[17]).

The benefits of a strategic alignment of values between procurement officials and suppliers have long been documented, including its impact on organisational efficiency (Barratt, 2004[18]). Nevertheless, ensuring this alignment requires that the contours governing future contractual relationships are identified as soon as acquisition strategies are defined.

Centres of expertise in construction and information technology are currently being set up to support public bodies in these areas, and their creation could be an opportunity to develop a contract management framework adapted to the particularities of these fields.

The focal point in defining the contractual relationship between procurement officials and the private sector is the establishment of a framework for evaluating contract performance. In many OECD countries this evaluation is not limited to judging whether or not the objectives defined in the contract have been achieved, but also more broadly the contractors' relationship with the public sector, including its business ethics and integrity.

The Office of Federal Procurement Policy (OFPP) in the United States, for example, has established guidelines for all federal procurement officials to assess and report on the performance and integrity of contractors in public procurement. (Office of Federal Procurement Policy, 2013[19]).

All the Regulations in Quebec include a requirement for the public body to record the evaluation of a supplier whose performance is considered unsatisfactory in a report. This negative evaluation allows the public body to reject the supplier in any new tender procedure. The only notable exception is the evaluation of supplier performance in IT-related public procurement where a comprehensive performance evaluation is required. In addition, as of 1st June 2016, the Regulation respecting contracts of public bodies in the field of information technologies (RCTI) requires public bodies to record an evaluation report of the service provider when the total amount paid for an information technology contract is greater than or equal to USD 100 000.

However, regardless of the content of these reports, for the time being, they are not shared with other public bodies. The consequence is that another public body will not be able to use the experience gained in the performance of previous contracts when identifying eligible providers in its own competitive procedures. This situation will likely change in the near future as the ACPB stipulates the centralisation of the evaluation process under the auspices of the AMP. Nevertheless, an implementing decree is necessary for this provision to be effective.

Given the importance of identifying suppliers who demonstrate integrity and efficiency in the performance of public procurement contracts, the Government of Quebec could ensure that this new provision comes into force as quickly as possible. Consequently, evaluations of unsatisfactory performance can be disseminated to all public and municipal bodies and past performance can be taken into account when awarding public contracts.

Nevertheless, to avoid too much discretion in the debarment of a provider from public contracts, minimum conditions must be defined so that a performance evaluation can be used in future procedures.

The Government of Quebec can draw inspiration from practices implemented in Europe, where the European Union Directive of 2014 stipulates that the past performance of a service provider may be taken into account when excluding a bidder from a tendering process, provided that the poor performance was significant or persistent. This last point implies that the poor performance must have been identified in more than one public procurement process.

Alternatively, the Government of Quebec can look to practices in the United States, where a supplier's past performance is not a reason for debarment but an element in the evaluation of bids. The main effect of this approach is to encourage bidders to improve their practices and their integrity in the performance of contracts, which will then be taken into account in future evaluations. Moreover, this approach has the advantage of not limiting competition since it does not de facto exclude a service provider.

Based on a structured and harmonised framework, the effective detection and prevention of corruption in public procurement is only possible if data on contract performance are collected, stored in a structured way and accessible for analysis (PwC, Ecorys, 2013[21]).

Authorising amendments to public procurement contracts is a practice inherent in any public procurement system. Although signing amendments does not as such provide proof of corrupt acts, it may be symptomatic of the risk of corruption (Racca and Perin, 2013[22]). These acts often take the form of additional expenditure, an extension of the deadline for the performance of services, or a reduction in the scope of services which was not included in the original contract.

Article 17 of the ACPB, like article 573.3.0.4 of the Cities and Towns Act, states that an amendment may be made to a contract as long as it is incidental to the contract and does not change its nature. On the other hand, an amendment does not require authorisation if it is due to a variation in the amount to which a predetermined percentage is to be applied or to a variation in quantity for which a unit price has been agreed.

Amendments to public contracts are subject to publication on the SEAO if they involve additional expenditure which represents more than 10% of the original contract value. Therefore, this factor facilitates the collection of data on this category of amendments. For example, a study conducted in 2013 on the contractual management of certain Quebec public bodies between 2010 and 2013 (KPMG and SECOR, 2013[23]) has shown, that the construction sector in Quebec has seen an increase in contract amendments resulting in additional expenditure. The study establishes the importance of analysing additional expenditure in identifying situations prone to corruption risks.

Nevertheless, as discussed in Chapter 2 of this report, changes to public procurement contracts with respect to an increase in the amount paid to the contractor are not the only indicator of potential corruption risks.

Indeed, as part of a risk analysis, the frequency of contract modifications, and the nature and identity of stakeholders can provide valuable additional indications on the existence of that risk. In addition, these elements provide objective information for comparison that complement the more traditional perception-based indicators (Fazekas and Kocsis, 2017[24]).

In addition to amendments to public procurement contracts with defined prices and scope, expenditures on open contracts, such as task order contracts and delivery order contracts, can provide additional indications of risks of fraud.

These contracts, which represent almost 25% of the total amount of public procurement contracts for government agencies, are not subject to systematic and centralised monitoring. Yet, due to their type and main characteristics, open contracts present specific risks of collusion or bribery (Albano and Nicholas, 2016[25]).

In fact, they offer the flexibility for contracting authorities to place one-off orders with identified suppliers. The lack of monitoring of the amounts actually spent prevents the detection of possible fraudulent schemes. For example, an analysis of spending on certain categories of pharmaceuticals by the decentralised entities of Mexico's Social Security Institute (Instituto Mexicano de Seguro Social, IMSS), the largest health organisation in Latin America, revealed a vast system of collusion (OECD, 2013[26]).

One of the powers attributed to the Autorité des marchés publics (AMP), based on the recommendations of the Charbonneau Commission, is the creation of a team of experts. The Authority has to monitor public contracts to analyse market trends and the contractual practices of public bodies and to identify problem situations affecting competition. During the monitoring or within its verification or investigation work, if the Authority detects indications of embezzlement or the presence of cartels, the LAMP has to send this information to the Anti-Corruption Commissioner, who is responsible for conducting criminal investigations in this area.

The Authority could therefore take advantage of the establishment of this team of experts to define the relevant indicators to help identify the contracts whose performance presents risks of fraud or bribery. As discussed above, these indicators could, in addition to expenditure increases, capture information related to the frequency of contractual amendments, their nature or the identity of stakeholders. They could also provide a general analysis of the final amounts actually spent on the different types of contracts and evaluate these in relation to the original estimates established by public bodies and the municipal actors.

An inherent element of public procurement contracts, which may have an indirect effect on the vulnerability of certain contracts to the risks of fraud and bribery, is the question of payment periods. This was particularly highlighted by the Charbonneau Commission. During their testimony before the Commission, several contractors mentioned the problem of delays in the payment of invoices submitted to contracting authorities. Generally, invoices are payable 30 days after the invoice date, but actual payment terms in the construction industry were reported to be 3 to 6 months, according to the contractors.

Beyond its impact on competition in public procurement, this situation involves two specific issues that may have an impact on the vulnerability of public procurement contracts to the risks of fraud and bribery. First, it gives significant power to site supervisors, since they must approve progress payments, among other things. Depending on the speed of their approval, these professionals may either intimidate or be too favourable towards construction contractors, thereby contributing to private bribery schemes.

Second, it permits the infiltration of organised crime into the construction industry. Indeed, an SME facing financial difficulties due to overly large accounts receivable could be tempted to resort to non-legitimate sources of financing. According to the Commission, illegitimate or non-traditional financing is used by a significant proportion of construction companies due to delayed payments. Different OECD countries have implemented specific strategies to accelerate payment terms in their public procurement contracts, especially by targeting specific sectors or types of suppliers such as SMEs (Box 5.5).

To address this problem, the recent AMP Act specifically provides that the President of the Treasury Board may, by decree, authorise the implementation of pilot projects to test various measures designed to facilitate payment to companies that are parties to public procurement contracts as well as to related public sub-contracts determined by the Treasury Board, and to define applicable standards in this regard.

Given the impact of delayed payments on the entire supply chain, Quebec could adopt a more systematic response to this issue to minimise its impact. This response could involve rolling out reduced payment terms applicable to all public procurement contracts or a gradual schedule focusing primarily on SMEs, as the most affected category.

References

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Note

← 1. Treasury Board Secretariat Analysis Report on Internal Guidelines, July 2016.

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