Law in Quebec

Under the Act, the province’s securities commission is the public guardian responsible for granting authorization to enterprises in a call for tenders or an award process for a contract or subcontract with a public body. The Autorité des marchés financiers (AMF) has sweeping discretionary powers to determine the integrity of enterprises and of its shareholders, partners, directors or officers and of any person or entity that has direct or indirect legal or de facto control over the enterprise. The AMF, however, has no choice but to blacklist an enterprise if the company or any of its directors, officers or shareholders holding 50 per cent or more of voting rights, have in the preceding five years been found guilty of a long list of offences.

The AMF works closely with Quebec’s anti-corruption police squad, otherwise known as UPAC. After an authorization request has been submitted by an enterprise to the AMF, the financial watchdog refers the matter to police, who conduct an investigation and scour their databases to see if any of the company’s principals are the subject of investigations or have been named at the Charbonneau Commission. UPAC then provides the AMF with an advisory opinion. Based on the UPAC report, the AMF notifies the applicant about its intention to either to grant or refuse an authorization. In either case, the company’s name enters into a public register.

Jean-Paul David, a partner with the Raymond Chabot Grant Thornton, one of Quebec’s largest accounting firms. In almost all cases, companies who have been blacklisted will have to stop working on public contracts already underway. Even more damaging, the business will automatically be listed in the Register of enterprises ineligible for public contracts (RENA).

“To be listed on RENA can be a very hard blow to a company,” said David, who is part of the recovery and reorganization group in Montreal. “It can have immediate consequences, such as losing all government contracts, unless the provincial government makes an exception for work already underway. Also, to be on RENA is to be in the public eye: your clients, your suppliers and your bankers all end up finding out that you are in RENA, and that has very important consequences.”

When the Integrity Act was introduced in December 2012, the Quebec government initially required companies bidding on public contracts worth $40 million or more to obtain authorization. That figure has now dropped to $10 million, and the Quebec government has sent out clear signals that it intends to drop the threshold below the $10 million mark in the future. In Montreal, that figure is even lower, plummeting to $100,000 or more for contracts on road, sewer or water-main projects.

That’s when accounting firms come in. A growing number of enterprises, principally in the engineering and construction sector, are turning to accounting firms to help and guide them with the AMF authorization process. “They have one shot, and they want to do it right and so they come to us,” said Marie-Chantal Dréau, a partner at PwC Canada in Montreal who leads the forensic services practise for the Quebec region.

Accounting firms assist clients in a variety of ways, and at different phases of the AMF vetting process. When clients are in the process of preparing their application, accounting firms will begin by analysing, if not even helping them to develop, internal governance structures, with an emphasis on ensuring that independence is a cornerstone of their operations. They also conduct management reviews, examine the company’s ethical and financial policies and procedures, and often times perform forensic investigations to look for evidence of wrongdoing.

“What you want to prove (to the AMF) is that you have enough independence on your operations that non-ethical behaviour would be caught or at a minimum would be questioned,” explained Dréau, CPA•CA, CA•IFA, MBA, CFE. “Then we look at their policies and procedures as it relates to integrity (to determine) if they have a proper code of ethics that addresses fraud, bid-rigging, and other such issues that were part of the industry motto before. You also want to make sure that before you submit an authorization request to the AMF that you have gotten rid of the bad apples.”

Accounting firms also step in when the AMF warn companies by letter that they are about to be refused. In such cases, the AMF spells out the reasons why they are about to be refused and then provides companies with an option: either withdraw its application or provide the AMF with additional information within 10 days that may help sway the financial watchdog to change its mind in the company’s favour. Some companies opt to withdraw their application because the consequences of being registered in the RENA registry are too deleterious, said David. Others turn to accounting firms to help draft a response to the notice of refusal. “We then often need to educate companies as to what they missed in providing the AMF with some comfort, and (help them) answer every single question the AMF is putting on the table,” said Dréau. “The notice of refusal provides reasons for the refusal so you know what needs to be addressed. Smaller companies don’t necessarily provide all the information the AMF or UPAC needs to give a positive response.”

Sometimes, the AMF hands out a conditional authorization in which case the company has made a commitment to put in place certain measures and to have them verified by an independent monitor such as an accounting firm. If the company fails to meet its obligations, then it risks losing its authorization.

All in all, it’s a new, exhaustive, and time-consuming process that is hard on companies, said David. Before the introduction of the Act, accounting firms were providing these specific services to public companies that had to comply with National Instrument 52-109 or the 2002 U.S. Sarbanes-Oxley Act.

But with the threshold likely to drop in the foreseeable future to below $10 million, chances are it will spur new growth opportunities for accounting firms. Indeed, smaller regional accounting firms like Le Groupe Amyot Gélinas are now considering entering the market. “It’s all about helping our clients,” said Marc Legault, CGA, of Amyot Gélinas. Though the majority of the clients now come from the construction and engineering sector, the Act covers all public contracts. It’s only a matter of time before other sectors will begin to seek out the expertise provided by accounting firms, said David. It’s also likely that there will be an influx of small-and-medium sized enterprises that will have to go through the vetting process, and that presents a different challenge to accounting firms. “Smaller companies are differently structured and have different means so they are likely going to come in and ask us what is sufficient and how to adapt it to their reality,” remarked Dréau. “We are going to have to provide different levels of assistance, much more practical.”

But it is not a line of business that will in and of itself sustain an accounting firm, warned David. “It’s a niche market,” said David. “It’s a market that will likely grow as the thresholds diminish, but I don’t think that there is enough volume to do just this.”