Bill 167, Transparency and Accountability in Government Contracting Act, 2016

Fife, Catherine

Current Status: Ordered referred to the Standing Committee on Finance and Economic Affairs

Viewing: Original (current version) pdf

Bill 167                                                       2016

An Act to enact the Privatizations and Public-Private Partnerships Transparency and Accountability Act, 2016 and to amend the Colleges Collective Bargaining Act, 2008

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

Contents of this Act

   1.  This Act consists of this section, sections 2 and 3 and the Schedules to this Act.

Commencement

   2.  (1)  Subject to subsection (2), this Act comes into force on the day it receives Royal Assent.

Same

   (2)  The Schedules to this Act come into force as provided in each Schedule.

Short title

   3.  The short title of this Act is the Transparency and Accountability in Government Contracting Act, 2016.

SCHEDULE 1
privatizations and Public-Private Partnerships transparency and accountability act, 2016

CONTENTS

PART I
GENERAL

1.

Purposes

2.

Definitions

3.

Crown bound

PART II
PRIVATIZATIONS

4.

Application

5.

Preliminary analysis and public consultation

6.

Review of procurement process by Financial Accountability Officer

7.

Public sector entity to report on privatization

8.

Auditor General’s powers and duties

9.

Response to Auditor General’s recommendations

10.

Procurement laws and policies apply

11.

Application of privacy legislation

12.

Ineligibility to submit bid

PART III
PUBLIC-PRIVATE PARTNERSHIPS

13.

Interpretation

14.

Preliminary analysis and public consultation

15.

Review of procurement process by Financial Accountability Officer

16.

Public sector entity to report on project

17.

Auditor General’s powers and duties

18.

Response to Auditor General’s recommendations

19.

Procurement laws and policies apply

20.

Application of privacy legislation

21.

Ineligibility to submit bid

PART IV
REGULATIONS

22.

Regulations

PART V
COMMENCEMENT AND SHORT TITLE

23.

Commencement

24.

Short title

 

PART i
General

Purposes

   1.  The purposes of this Act are as follows:

    1.  To ensure an independent evaluation and public reporting of value for taxpayers in the privatization of public services and in public-private partnership projects.

    2.  To ensure transparency and accountability to privatizations and to the public-private partnership method of building major capital projects.

Definitions

   2.  In this Act,

“prescribed” means prescribed by the regulations; (“prescrit”)

“private sector entity” means,

  (a)  any person or organization other than,

           (i)  a public sector entity, or

          (ii)  the Government of Canada or of a jurisdiction outside Ontario, or an entity controlled by a such a government, and

  (b)  a combination of such persons or organizations acting as a group; (“entité du secteur privé”)

“public sector entity” means,

  (a)  the Crown in right of Ontario, every agency thereof, and every authority, board, commission, corporation, office or organization of persons any of whose directors, members or officers are appointed or chosen by or under the authority of the Lieutenant Governor in Council or a member of the Executive Council,

  (b)  the corporation of every municipality in Ontario,

   (c)  every board as defined in the Education Act,

  (d)  every university in Ontario and every college of applied arts and technology and post-secondary institution in Ontario whether or not affiliated with a university, the enrolments of which are counted for purposes of calculating annual operating grants entitlements,

  (e)  every hospital referred to in the list of hospitals and their grades and classifications maintained by the Minister of Health and Long-Term Care under the Public Hospitals Act and every private hospital operated under the authority of a licence issued under the Private Hospitals Act,

   (f)  subject to the Government funding condition in subsection 2 (2) of the Public Sector Salary Disclosure Act, 1996, every corporation with share capital, at least 90 per cent of the issued shares of which are beneficially held by or for an employer or employers described in clauses (a) to (e), and every wholly-owned subsidiary thereof,

  (g)  subject to the Government funding condition in subsection 2 (2) of the Public Sector Salary Disclosure Act, 1996, every corporation without share capital, the majority of whose members, directors or officers are members of, or are appointed or chosen by or under the authority of, an employer or employers described in clauses (a) to (e), and every wholly-owned subsidiary thereof,

  (h)  every board of health under the Health Protection and Promotion Act,

    (i)  any authority, board, commission, corporation, office, person or organization of persons, or any class of authorities, boards, commissions, corporations, offices, persons or organizations of persons, as may be prescribed,

    (j)  Hydro One Inc. and each of its subsidiaries, or

   (k)  Ontario Power Generation Inc. and each of its subsidiaries; (“entité du secteur public”)

“regulations” means the regulations made under this Act. (“règlements”)

Crown bound

   3.  This Act binds the Crown.

Part II
Privatizations

Application

   4.  (1)  This Part applies to the privatization of services provided under a program of a public sector entity in which all of the following circumstances exist:

    1.  The privatization involves a change in the way in which the services are to be provided, a change in the way in which the services are to be financed or a change of the entity that is to provide some or all of the services.

    2.  A private sector entity will provide all or part of the financing for the services or will provide some or all of the services.

    3.  The projected total value of all of the contracts relating to the privatization is $2 million or more.

Initiating a procurement process

   (2)  For the purpose of this Part, the procurement process for the privatization of services is initiated when a public sector entity issues a request for qualifications or proposals, call for tenders, or other document in response to which a private sector entity may make a submission for qualification, or submit a proposal or bid, in relation to the privatization.

Preliminary analysis and public consultation

   5.  (1)  A public sector entity shall not initiate a procurement process for the privatization of any services until all of the requirements set out in this section are met.

Public sector entity to conduct analysis, etc.

   (2)  Before making a final decision on whether to proceed with a privatization, a public sector entity shall do all of the following:

    1.  Calculate the cost of the public sector entity continuing to provide the services, in accordance with the regulations and with a detailed explanation of any assumptions.

    2.  Analyze the viability and the expected risks, costs and benefits of using a private sector entity to provide the services, taking into account the public’s interest in maintaining the service by the public sector entity and such other factors as may be prescribed.

    3.  Prepare a full value-for-money audit and business case analysis for the privatization of the services compared to the costs associated with the public sector entity continuing to provide the services.

    4.  Prepare a report containing the matters referred to in paragraphs 1, 2 and 3 and that contains a statement of the expected benefits and liabilities of the privatization.

Duty to inform public and Financial Accountability Officer

   (3)  If the public sector entity decides to proceed with the privatization, the public sector entity shall do both of the following:

    1.  Within 14 days of the decision, make information about the privatization and the report under subsection (2) publicly available.  However, the public sector entity is not required to disclose information that could, if disclosed, jeopardize the public sector entity’s ability to realize the best value for money through a competitive procurement process.

    2.  Notify the Financial Accountability Officer and the Standing Committee on Estimates promptly of the decision.

Up-front review by Financial Accountability Officer

   (4)  Upon being notified that the public sector entity has decided that it intends to proceed with the privatization, the Financial Accountability Officer shall,

  (a)  perform an up-front review and analysis of all preliminary analysis, information and reports prepared by the public sector entity under subsection (2);

  (b)  review and seek any other relevant information, as required, with full access to the public sector entity’s information, as required; and

   (c)  provide a minimum of 60 days for comments from members of the public and the workers, or their representatives, who may be impacted by the privatization.

Requirement to give information

   (5)  The public sector entity shall give the Financial Accountability Officer all of the information that the Financial Accountability Officer believes to be necessary to perform his or her duties under this section.

Report by Financial Accountability Officer

   (6)  Following the Financial Accountability Officer’s review and analysis, he or she shall report his or her analysis publicly to the Assembly through the Standing Committee on Estimates.

Restriction re disclosure of information

   (7)  Section 13 of the Financial Accountability Officer Act, 2013 applies, with necessary modifications, to the disclosure of information by the Financial Accountability Officer under subsection (6).

Public consultation

   (8)  If, after the requirements under subsections (2), (3), (4) and (6) have been met, the public sector entity still wishes to proceed with the privatization, the public sector entity shall,

  (a)  make information about the privatization and the report under subsection (2) publicly available, but without disclosing information that, if disclosed, could jeopardize the public sector entity’s ability to realize the best value for money through a competitive procurement process; and

  (b)  provide a reasonable opportunity for comment from members of the public and the workers, or their representatives, who may be impacted by the privatization.

Review of procurement process by Financial Accountability Officer

   6.  (1)  A public sector entity that decides to privatize particular services shall allow the Financial Accountability Officer to conduct reviews of the procurement process.

Requirement to give information

   (2)  The public sector entity and private sector entity shall give the Financial Accountability Officer the information that the Financial Accountability Officer believes to be necessary to perform his or her duties under this section.

Financial Accountability Officer’s role during the procurement process

   (3)  The role of the Financial Accountability Officer with regard to the procurement process is as follows:

    1.  To advise the public sector entity on the procurement process for the purpose of ensuring that it is conducted with openness, transparency, integrity and accountability.

    2.  To review each request for qualifications or proposals, call for tenders or other document soliciting responses from private sector entities, including the processes described in that document for evaluating the responses to it.

    3.  To assess the extent to which the procurement process, including the selection of the successful proponent or bidder, conformed to,

            i.  the procurement solicitation documents, and

           ii.  the applicable procurement laws, agreements, policies and procedures.

    4.  To make recommendations to the public sector entity regarding the timing and content of its public reports about the privatization.

    5.  To prepare a final report to the public sector entity that,

            i.  summarizes the Financial Accountability Officer’s duties under this section,

           ii.  describes the Financial Accountability Officer’s review of the procurement solicitation documents and the evaluation of the responses,

          iii.  summarizes the Financial Accountability Officer’s findings about the procurement process, and

          iv.  sets out the recommendations referred to in paragraph 4.

    6.  To prepare, in accordance with the regulations, a summary of the terms of the contract or contracts awarded by the public sector entity to the successful proponent or bidder in the procurement process.

    7.  To report publicly on the process and any concerns with regard to the fairness of the process, the effectiveness of the process, and the extent to which the proposed privatization achieves value for money and protects the public interest. Such reports must be made available to the public at the same time they are given to the public sector entity.

    8.  To perform any additional duties as may be prescribed.

Restriction re disclosure of information

   (4)  Section 13 of the Financial Accountability Officer Act, 2013 applies, with necessary modifications, to the disclosure of information by the Financial Accountability Officer under subsection (3).

Report to be reviewed by Auditor General and made public

   (5)  If, after receiving the Financial Accountability Officer’s final report, the public sector entity chooses to continue with the privatization, the public sector entity shall,

  (a)  submit the Financial Accountability Officer’s final report and contract summary to the Auditor General for review and comment and, upon receiving the Auditor General’s comments, make the report and summary, together with the Auditor General’s comments, publicly available; and

  (b)  continue to make them publicly available throughout the term of the privatization with annual reports of the privatization.

Public sector entity to report on privatization

   7.  (1)  A public sector entity that engages in the privatization of particular services shall prepare reports on the results of the privatization in accordance with the regulations,

  (a)  as soon as is reasonably practicable after the services have been privatized, but no later than two years after they are privatized;

  (b)  at least once every two years during the term, including any renewals, of the privatized services; and

   (c)  within six months after the termination of the privatized services or within any longer period as may be prescribed for the particular type of privatization.

Content of reports

   (2)  The reports shall include an evaluation of whether the private sector entity has met the service standards, timelines, and prices agreed to in the contract, and shall provide an explanation and analysis of any deviations from those standards, timelines, and prices.

Report to be reviewed by Auditor General and made public

   (3)  The public sector entity shall,

  (a)  submit each report under subsection (1) to the Auditor General for review and comment and, upon receiving the Auditor General’s comments, make the report, together with the Auditor General’s comments, publicly available; and

  (b)  continue to make the reports and comments publicly available throughout the term of the privatized services and for one year after the end of that term.

Auditor General’s powers and duties

   8.  (1)  For the purpose of enabling the Auditor General to review and comment on a report and contract summary of the Financial Accountability Officer under section 6 or the report of a public sector entity under section 7,

  (a)  the Auditor General is entitled to access,

           (i)  all documents and records of, or in the possession or control of, the Financial Accountability Officer, and

          (ii)  all documents and records of, or in the possession or control of, the public sector entity, that the Auditor General considers relevant to the review; and

  (b)  if the Auditor General believes on reasonable grounds that the Financial Accountability Officer, the public sector entity, the private sector entity or any other person or organization has information relevant to the review, the Auditor General may require the person, entity or organization to provide that information.

Auditor General Act

   (2)  Sections 10, 11, 11.1, 19, 27.1 and 27.2of the Auditor General Act apply, with necessary modifications, in relation to the Auditor General’s powers and duties under this Part as if they were powers and duties under that Act.

Report

   (3)  The Auditor General may submit a report about its review under subsection (1) to the Assembly if it is in the public interest to do so, but must allow at least 14 days for the public sector entity to review and comment on the report before finalizing it for submission to the Assembly.

Same, referral of report to Standing Committee

   (4)  Every report by the Auditor General stands permanently referred to the Standing Committee on Public Accounts.

Standing Committee report

   (5)  The Standing Committee may report its observations, opinions and recommendations about the Auditor General’s reports to the Assembly from time to time.

Response to Auditor General’s recommendations

   9.  If the Auditor General’s comments about a report under section 6 or 7 include a recommendation for the public sector entity, the public sector entity shall,

  (a)  consider the recommendation and respond to it;

  (b)  if its response is to implement the recommendation or some other measure, set a time frame for that implementation; and

   (c)  make a description of that response publicly available along with the report and the Auditor General’s comments.

Procurement laws and policies apply

   10.  If a public sector entity decides to privatize particular services, the procurement of services for the privatization must proceed in accordance with this Part and the regulations, procurement laws, agreements, policies and procedures that apply to the entity.

Application of privacy legislation

   11.  (1)  A private sector entity that is awarded a contract to provide public services under a program of a public sector entity is deemed to be an institution for the purposes of the Freedom of Information and Protection of Privacy Act and the Municipal Freedom of Information and Protection of Privacy Act.

Limitation re information

   (2)  Requests for access to the private sector entity’s records under the Freedom of Information and Protection of Privacy Act or the Municipal Freedom of Information and Protection of Privacy Act may only be made in respect of records that are relevant to the private sector entity’s provision of the public services.

Ineligibility to submit bid

   12.  (1)  A private sector entity is ineligible to submit a bid or be part of a consortium submitting a bid in a procurement process for the privatization of public services within 10 years after the private sector entity is convicted of, or pleads guilty to, an offence in Canada or elsewhere relating to any of the following:

    1.  Frauds against the government under the Criminal Code (Canada).

    2.  Frauds under the Financial Administration Act (Canada).

    3.  Payment of a contingency fee to a person to whom the Lobbying Act (Canada) applies.

    4.  Corruption, collusion, bid-rigging or any other anti-competitive activity under the Competition Act(Canada).

    5.  Money laundering.

    6.  Participation in activities of criminal organizations.

    7.  Income tax and excise tax evasion.

    8.  Bribing a foreign public official.

    9.  Offences in relation to drug trafficking.

  10.  Extortion.

  11.  Bribery of judicial officers.

  12.  Secret commissions.

  13.  Criminal breach of contracts.

  14.  Fraudulent manipulation of stock exchange transactions.

  15.  Prohibited insider trading.

  16.  Forgery and other offences resembling forgery.

  17.  Falsification of books and documents.

Same

   (2)  For the purposes of subsection (1), a private sector entity includes any corporations associated with the public sector entity under section 256 of the Income Tax Act (Canada).

Part III
Public-Private Partnerships

Interpretation

   13.  (1)  In this Part,

“major capital project” means a project that,

  (a)  involves the creation or development of a public work or improvements to a public work, and

  (b)  has a projected total cost — including the costs of any contract renewals or extensions, project add-ons and future phases planned for the project, even if they are not included in the initial procurement for the project — of $20 million or more; (“grand projet d’immobilisations”)

“P3 procurement method” means a method of procurement that involves the use of a public-private partnership to effect the procurement; (“méthode d’approvisionnement PPP”)

“public-private partnership” means a contractual arrangement between a public sector entity and a private sector entity for the procurement of a public work or improvements to a public work that,

  (a)  is an arrangement under which,

           (i)  the private sector entity assumes responsibility for all or substantially all of at least two of the following aspects of the project:

                 (A)  its design,

                 (B)  its construction,

                 (C)  the long-term private sector financing for its construction,

                 (D)  the activities related to its long-term operation,

                 (E)  its long-term maintenance, and

          (ii)  at least one of the aspects of the project for which the private sector entity assumes responsibility is its long-term operation or maintenance, or the long-term financing for its construction, or

  (b)  is a type of arrangement prescribed by the regulations; (“partenariat public-privé”)

“public work” means any work that is constructed or maintained,

  (a)  for a public purpose by or on behalf of a public sector entity, or

  (b)  for the purposes of a public sector entity. (“ouvrage public”)

Same, “major capital project”

   (2)  For the purpose of the definition “major capital project”, the projected total cost of a project includes the cost or projected cost of any related project for which the public sector entity has used, is using or is intending to use the P3 procurement method. For this purpose, two projects are related if,

  (a)  the projects involve the same public work or similar or related public works at the same location;

  (b)  the public sector entity is planning or has planned one of the projects when it initiates the procurement process for the other project; and

   (c)  the same or similar private sector entities could reasonably be expected to submit bids or proposals for both projects.

Initiating a procurement process

   (3)  For the purpose of this Part, the procurement process for a project is initiated when a public sector entity issues a request for qualifications or proposals, call for tenders, or other document in response to which a private sector entity may make a submission for qualification, or submit a proposal or bid, in relation to the project.

Preliminary analysis and public consultation

   14.  (1)  A public sector entity shall not initiate a procurement process using a P3 procurement method for a major capital project until all of the requirements set out in this section are met.

Public sector entity to conduct analysis, etc.

   (2)  Before selecting a public-private partnership approach for a major capital project, a public sector entity shall do all of the following:

    1.  Have a public sector comparator prepared for the project in accordance with the regulations and with a detailed explanation of any assumptions.

    2.  Analyze the viability and the expected risks, costs and benefits of using a private sector entity to provide the services, taking into account the public’s interest in maintaining the service by the public sector entity and such other factors as may be prescribed.

    3.  Prepare a full value-for-money audit and business case analysis for the public-private partnership compared to a detailed public sector comparator, which must include the total and full life-cycle costs, nominal annual costs of the public-private partnership, the actual nominal cost obligations each year that a government would incur, full disclosure and substantiation of risk transfer and assumptions, full disclosure on cost of credit to taxpayers – both credit of a private partner and public credit.

    4.  Analyze the local economic impact of using the P3 procurement method.

    5.  Prepare a report containing the matters referred to in paragraphs 1, 2, 3 and 4 that contains a statement of the expected benefits and liabilities of the public-private partnership.

Duty to inform public and Financial Accountability Officer

   (3)  If the public sector entity selects a public-private partnership approach for a major capital project, the public sector entity shall do both of the following:

    1.  Within 14 days of the decision, make information about the public-private partnership and the report under subsection (2) publicly available.  However, the public sector entity is not required to disclose information that could, if disclosed, jeopardize the public sector entity’s ability to realize the best value for money through a competitive procurement process.

    2.  Notify the Financial Accountability Officer and the Standing Committee on Estimates promptly of the decision.

Up-front review by Financial Accountability Officer

   (4)  Upon being notified that the public sector entity has selected a public-private partnership approach for a major capital project, the Financial Accountability Officer shall,

  (a)  perform an up-front review and analysis of all preliminary analysis, information and reports prepared by the public sector entity under subsection (2);

  (b)  review and seek any other relevant information, as required, with full access to the public sector entity’s information, as required; and

   (c)  provide a minimum of 60 days for comments from members of the public and the workers, or their representatives, who may be impacted by the public-private partnership.

Requirement to give information

   (5)  The public sector entity shall give the Financial Accountability Officer all of the information that the Financial Accountability Officer believes to be necessary to perform his or her duties under this section.

Report by Financial Accountability Officer

   (6)  Following the Financial Accountability Officer’s review and analysis, he or she shall report his or her analysis publicly to the Assembly through the Standing Committee on Estimates.

Restriction re disclosure of information

   (7)  Section 13 of the Financial Accountability Officer Act, 2013 applies, with necessary modifications, to the disclosure of information by the Financial Accountability Officer under subsection (6).

Public consultation

   (8)  If, after the requirements under subsections (2), (3), (4) and (6) have been met, the public sector entity still wishes to proceed with the P3 procurement method, it shall,

  (a)  make information about the project and the report under subsection (2) publicly available, but without disclosing information that, if disclosed, could jeopardize the public sector entity’s ability to realize the best value for money through a competitive procurement process; and

  (b)  provide a reasonable opportunity for comment from members of the public and the workers, or their representatives, who may be impacted by the project.

Review of procurement process by Financial Accountability Officer

   15.  (1)  A public sector entity that uses the P3 procurement method for a major capital project shall allow the Financial Accountability Officer to conduct reviews of the procurement process.

Requirement to give information

   (2)  The public sector entity and private sector entity shall give the Financial Accountability Officer the information that the Financial Accountability Officer believes to be necessary to perform his or her duties under this section.

Financial Accountability Officer’s role during the procurement process

   (3)  The role of the Financial Accountability Officer with regard to the procurement process is as follows:

    1.  To advise the public sector entity on the procurement process for the purpose of ensuring that it is conducted with openness, transparency, integrity and accountability.

    2.  To review each request for qualifications or proposals, call for tenders or other document soliciting responses from private sector entities, including the processes described in that document for evaluating the responses to it.

    3.  To assess the extent to which the procurement process, including the selection of the successful proponent or bidder, conformed to,

            i.  the procurement solicitation documents, and

           ii.  the applicable procurement laws, agreements, policies and procedures.

    4.  To make recommendations to the public sector entity regarding the timing and content of its public reports about the project.

    5.  To prepare a final report to the public sector entity that,

            i.  summarizes the Financial Accountability Officer’s duties under this section,

           ii.  describes the Financial Accountability Officer’s review of the procurement solicitation documents and the evaluation of the responses,

          iii.  summarizes the Financial Accountability Officer’s findings about the procurement process, and

          iv.  sets out the recommendations referred to in paragraph 4.

    6.  To prepare, in accordance with the regulations, a summary of the terms of the contract or contracts awarded by the public sector entity to the successful proponent or bidder in the procurement process.

    7.  To report publicly on the process and any concerns with regard to the fairness of the process, the effectiveness of the process, and the extent to which the proposed public-private partnership achieves value for money and protects the public interest.  Such reports must be made available to the public at the same time they are given to the public sector entity.

    8.  To perform any additional duties as may be prescribed.

Restriction re disclosure of information

   (4)  Section 13 of the Financial Accountability Officer Act, 2013 applies, with necessary modifications, to the disclosure of information by the Financial Accountability Officer under subsection (3).

Report to be reviewed by Auditor General and made public

   (5)  If, after receiving the Financial Accountability Officer’s final report, the public sector entity chooses to continue with the public-private partnership, the public sector entity shall,

  (a)  submit the Financial Accountability Officer’s final report and contract summary to the Auditor General for review and comment and, upon receiving the Auditor General’s comments, make the report and summary, together with the Auditor General’s comments, publicly available; and

  (b)  continue to make them publicly available throughout the term of the public-private partnership with annual reports of the public-private partnership.

Public sector entity to report on project

   16.  (1)  A public sector entity that uses the P3 procurement method for a major capital project shall prepare reports on the results for that project in accordance with the regulations,

  (a)  as soon as is reasonably practicable after construction is completed, but no later than two years after it is completed;

  (b)  at least once every two years during the term, including any renewals, of the public-private partnership established for that project; and

   (c)  within six months after the termination of the public-private partnership or within any longer period as may be prescribed for that type of project.

Content of reports

   (2)  The reports shall include an evaluation of whether the private sector entity has met the service standards, timelines, and prices agreed to in the contract, and shall provide an explanation and analysis of any deviations from those standards, timelines, and prices.

Report to be reviewed by Auditor General and made public

   (3)  The public sector entity shall,

  (a)  submit each report under subsection (1) to the Auditor General for review and comment and, upon receiving the Auditor General’s comments, make the report, together with the Auditor General’s comments, publicly available; and

  (b)  continue to make the reports and comments publicly available throughout the term of the public-private partnership and for one year after the end of that term.

Auditor General’s powers and duties

   17.  (1)  For the purpose of enabling the Auditor General to review and comment on a report and contract summary of the Financial Accountability Officer under section 15 or the report of a public sector entity under section 16,

  (a)  the Auditor General is entitled to access,

           (i)  all documents and records of, or in the possession or control of, the Financial Accountability Officer, and

          (ii)  all documents and records of, or in the possession or control of, the public sector entity, that the Auditor General considers relevant to the review; and

  (b)  if the Auditor General believes on reasonable grounds that the Financial Accountability Officer, the public sector entity, the private sector entity or any other person or organization has information relevant to the review, the Auditor General may require the person, entity or organization to provide that information.

Auditor General Act

   (2)  Sections 10, 11, 11.1, 19, 27.1 and 27.2 of the Auditor General Act apply, with necessary modifications, in relation to the Auditor General’s powers and duties under this Part as if they were powers and duties under that Act.

Report

   (3)  The Auditor General may submit a report about its review under subsection (1) to the Assembly if it is in the public interest to do so, but must allow at least 14 days for the public sector entity to review and comment on the report before finalizing it for submission to the Assembly.

Same, referral of report to Standing Committee

   (4)  Every report by the Auditor General stands permanently referred to the Standing Committee on Public Accounts.

Standing Committee report

   (5)  The Standing Committee may report its observations, opinions and recommendations about the Auditor General’s reports to the Assembly from time to time.

Response to Auditor General’s recommendations

   18.  If the Auditor General’s comments about a report under section 15 or 16 include a recommendation for the public sector entity, the public sector entity shall,

  (a)  consider the recommendation and respond to it;

  (b)  if its response is to implement the recommendation or some other measure, set a time frame for that implementation; and

   (c)  make a description of that response publicly available along with the report and the Auditor General’s comments.

Procurement laws and policies apply

   19.  If a public sector entity decides to use the P3 procurement method for a project, the procurement of goods, services and construction for that project must proceed in accordance with this Part and the regulations, procurement laws, agreements, policies and procedures that apply to the entity.

Application of privacy legislation

   20.  (1)  A private sector entity that enters into a public-private partnership for a major capital project is deemed to be an institution for the purposes of the Freedom of Information and Protection of Privacy Act and the Municipal Freedom of Information and Protection of Privacy Act.

Limitation re information

   (2)  Requests for access to the private sector entity’s records under the Freedom of Information and Protection of Privacy Act or the Municipal Freedom of Information and Protection of Privacy Act may only be made in respect of records that are relevant to the public-private partnership.

Ineligibility to submit bid

   21.  (1)  A private sector entity is ineligible to submit a bid or be part of a consortium submitting a bid in a procurement process for a public-private partnership for 10 years after it is convicted of, or pleads guilty to, an offence in Canada or elsewhere relating to any of the following:

    1.  Frauds against the government under the Criminal Code(Canada).

    2.  Frauds under the Financial Administration Act (Canada).

    3.  Payment of a contingency fee to a person to whom the Lobbying Act (Canada) applies.

    4.  Corruption, collusion, bid-rigging or any other anti-competitive activity under the Competition Act (Canada).

    5.  Money laundering.

    6.  Participation in activities of criminal organizations.

    7.  Income tax and excise tax evasion.

    8.  Bribing a foreign public official.

    9.  Offences in relation to drug trafficking.

  10.  Extortion.

  11.  Bribery of judicial officers.

  12.  Secret commissions.

  13.  Criminal breach of contracts.

  14.  Fraudulent manipulation of stock exchange transactions.

  15.  Prohibited insider trading.

  16.  Forgery and other offences resembling forgery.

  17.  Falsification of books and documents.

Same

   (2)  For the purposes of subsection (1), a private sector entity includes any corporations associated with the public sector entity under section 256 of the Income Tax Act (Canada).

Part IV
Regulations

Regulations

   22.  The Lieutenant Governor in Council may make regulations prescribing any matter that, under Part II or III, is permitted or required to be prescribed or to be otherwise done by regulation or in accordance with the regulations.

Part V
Commencement and short title

Commencement

   23.  The Act set out in this Schedule comes into force on the day that is 180 days after the Transparency and Accountability in Government Contracting Act, 2016 receives Royal Assent.

Short title

   24.  The short title of the Act set out in this Schedule is the Privatizations and Public-Private Partnerships Transparency and Accountability Act, 2016.

Schedule 2
Colleges Collective bargaining act, 2008

   1.  The Colleges Collective Bargaining Act, 2008 is amended by adding the following section:

s. 69 (Successor rights)

   77.1  (1)  The operation of section 69 of the Labour Relations Act, 1995 is subject to the modifications set out in this section.

Application

   (2)  Section 69 of the Labour Relations Act, 1995 applies with respect to the transfer of an undertaking from one employer to another where the employees of one or both of those employers are employees under this Act.

References modified

   (3)  Any reference to “sale” or “sells” in section 69 of the Labour Relations Act, 1995 shall be deemed to be a reference to a transfer and any reference to a “business” in that section shall be deemed to be a reference to an undertaking.

Definitions

   (4)  For the purposes of subsections (2) and (3),

“transfer” means a conveyance, disposition or sale, and the verb has a corresponding meaning; (“transfert”, “transférer”)

“undertaking” means all or part of a business, enterprise, institution, program, project or work. (“activité”)

Commencement

   2.  This Schedule comes into force on the day the Transparency and Accountability in Government Contracting Act, 2016 receives Royal Assent.

 

EXPLANATORY NOTE

The Bill enacts the Privatizations and Public-Private Partnerships Transparency and Accountability Act, 2016 and amends the Colleges Collective Bargaining Act, 2008. For convenience, the amendments are set out in separate Schedules.

SCHEDULE 1
privatizations and Public-Private Partnerships transparency and accountability act, 2016

Part I: Purposes and Definitions

Part I sets out the purposes of the Privatizations and Public-Private Partnerships Transparency and Accountability Act, 2016 and various definitions that apply to the Act, such as “public sector entity” which includes entities within the broader public sector. The Part also provides that the Crown is bound by the Act.

Part II: Privatizations

Part II requires a public sector entity to conduct a preliminary analysis before it can initiate a procurement process for the privatization of public services. The Part applies to the  privatization of services provided under a program of a public sector entity which would involve, among other things, a projected total value of $2 million or more.

The preliminary analysis must include an analysis of the viability, the expected risks, costs and benefits of using a private sector entity to provide the services and also a value-for-money audit and business case analysis for the privatization. The Financial Accountability Officer must then conduct a review of the preliminary analysis and must provide at least 60 days for comments from the public, followed by a report to the public and to the Standing Committee on Estimates. If the public sector entity still wishes to proceed with the privatization, the public sector entity must make information about the privatization available to the public and must provide an opportunity for comment from the public.

The Financial Accountability Officer must perform certain specified tasks during the procurement process, including the preparation of a final report and a summary of contracts awarded by the public sector entity. The public sector entity must, if it still chooses to continue with the privatization, submit the final report and contract summary to the Auditor General for review and comment. The public sector entity must report on the results of the privatization, which must be reviewed by the Auditor General and made public.

Every report of the Auditor General is permanently referred to the Standing Committee on Public Accounts. The Committee may report to the Assembly its observations, opinions and recommendations about the Auditor General’s reports.

A private sector entity that is awarded a contract to provide public services is deemed to be an institution for the purposes of the Freedom of Information and Protection of Privacy Actand the Municipal Freedom of Information and Protection of Privacy Act. However, a request for access to the private sector entity’s records may only be made in respect of records that are relevant to the private sector entity’s provisions of public services.

A private sector entity is ineligible to submit a bid on a procurement process relating to a privatization for 10 years after being convicted of or pleading guilty to certain offences.

Part III: Public-Private Partnerships

Part III provides the same rules in Part II for public-private partnerships for major capital projects. Major capital projects are projects that involve the creation or development of a public work, or improvements to a public work, that have a projected total cost of $20 million or more.

Part IV: Regulations

Part IV authorizes the Lieutenant Governor in Council to make regulations for the purposes specified in Parts II and III.

SCHEDULE 2
Colleges Collective bargaining Act, 2008

The Schedule amends the Colleges Collective Bargaining Act, 2008 to specify that section 69 of the Labour Relations Act, 1995, which sets out successor rights on the sale of a business, forms part of the Colleges Collective Bargaining Act, 2008. The amendments also specify that section 69 applies to the transfer of an undertaking if the transfer involves employees under the Act.

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