CHARBONNEAU REPORT : A DAMP SQUIB?
Posted on December 2, 2015
On November 9, 2011 the Quebec cabinet adopted a decree creating the Commission d’enquête sur l’octroi et la gestion des contrats publics dans l’industrie de la construction (CECI), better known as the Charbonneau Commission.
The mandate of the Commission was threefold:
- To identify and describe collusion and corruption schemes in the granting and management of public construction contracts;
- To identify and describe organized crime infiltration of the construction industry; and
- To make recommendations to detect, prevent and punish activities described above.
After four years of work, including 261 days of public and in camera hearings, the Commission issued on November 25, 2015 a 1741-page report detailing its findings and recommendations.
The initial response from media and civil society has been one of lunchbag letdown. They were looking for more drama and scandals and instead were treated to a sober, carefully crafted forward looking document.
During the Spring and Summer of 2015 the Commission let it be known that it was likely to blame certain organizations and individuals. Those likely to be blamed were formally warned and in turn sought legal help and made it widely known that they would vigorously defend their reputation. In the end, the Commission did not formally blame anyone. While there is much speculation as to the reasons behind such lack of action it would appear that the Commission chose to turn the page on the past and focus on the future rather than see its recommendations buried under an avalanche of scandals and lawsuits.
The Commission has made sixty specific recommendations designed to prevent, detect and/or punish collusion and corruption. Collusion (bid rigging) is the bigger problem in Quebec.
The first two recommendations are broad scoped: the creation of a procurement watchdog and the standardization of contracts and procedures. Most of the others are quite technical, narrow focused and difficult quickly to encapsulate.
Here again many felt that the recommendations were timid. In fairness much of the thunder of the Commission’s findings has been taken away by Quebec’s deliberate steps over the last four years to put into place Canada’s most fulsome anti-corruption and anti-collusion regime:
- In February 2011 Quebec created l’Unité permanente anticorruption (UPAC). UPAC is a permanent interdisciplinary unit with more than 300 persons dedicated to combatting collusion and corruption. Since its inception it has arrested mayors, contractors, civil servants, etc. and continues to make headlines. 19 persons have been found guilty with tens of others awaiting trial, including the former mayor of Quebec’s third largest city.
- In December 2012 Quebec adopted the Integrity in Public Contracts Act which, inter alia, requires companies to be authorized to contract with the Quebec government and other state instrumentalities.
- In February 2014 Quebec adopted An Act respecting the Inspector General of the Ville de Montréal. The first inspector general is a former Commission Charbonneau attorney. As recently as November 23, 2015, the inspector general issued a report saying that snow removal in Montreal continued to show collusion problems and proposed a number of concrete solutions.
- In April 2015 Quebec adopted an Act to ensure mainly the Recovery of Amounts Improperly Paid as a result of Fraud or Fraudulent Actions in connection with Public Contracts. The law allows public bodies to sue and recover overpayments. In November 2015 Quebec’s Ministry of Justice put in place a one-year voluntary disclosure scheme and Montreal quickly made use of it by “inviting” 380 contractors, suppliers and service providers to meet with the City and come to an arrangement.
In an open letter published December 8, 2010 on La Presse.ca, I suggested that the watchdog to be created by Quebec should collate and make available on its website contract prices and terms so as to allow comparisons between Quebec regions and cities as well as between provinces.
Such information would not only enable government and civil society better to monitor and evaluate tenders but would also facilitate the use of Big Data tools. The Commission’s report at Annex 21 has a very interesting study of tender prices in rigged bid processes. According to Annex 21, rigged bid processes show smaller differences between the lowest and highest bids than clean processes.
Annex 21 is just one example of the care taken by the Commission in drafting its report and making recommendations. The Charbonneau report is far from a wet squib. On the contrary, it is a thoughtful document that should be read by every government in Canada.