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S.M. 2012, c. 36
Bill 34, 1st Session, 40th Legislature
The Public-Private Partnerships Transparency and Accountability Act
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(Assented to June 14, 2012)
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
The following definitions apply in this Act.
"First Nation band council" means "council of the band" as defined in the Indian Act (Canada). (« conseil de bande d'une Première nation »)
"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 $20,000,000 or more. (« projet d'immobilisations important »)
"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 »)
"private sector entity" means
(a) any person or organization other than
(i) a public sector entity,
(ii) the government of Canada or of a jurisdiction outside Manitoba, or an entity controlled by such a government, and
(iii) a First Nation band council or an entity controlled by a First Nation band council; and
(b) a combination of two or more such persons or organizations acting as a group. (« entité du secteur privé »)
"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,
(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, and
(iii) ownership of the public work or the improvements, as the case may be, if held by the private sector entity, reverts to the public sector entity during or at the end of the term of the arrangement; or
(b) is a type of arrangement prescribed by regulation. (« partenariat public-privé »)
"public sector entity" means
(a) the government of Manitoba;
(b) a city, municipality or other local government entity, other than a First Nation band council;
(c) a reporting organization as defined in The Financial Administration Act;
(d) an entity controlled by an entity referred to in clause (a), (b) or (c); and
(e) a combination of two or more public sector entities acting together to undertake a major capital project. (« entité du secteur public »)
"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 »)
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.
For the purpose of this Act, a consultant engaged under section 5 or appointed under section 7 is deemed to have a significant connection with each of the following persons and organizations:
(a) a person who is the spouse, common-law partner, child, parent, brother or sister of the consultant;
(b) a person who is an employee or partner of the consultant, or a member of the consultant's board of directors;
(c) a corporation or other organization in which the consultant or any of the persons described in clause (a) or (b), or any combination of those persons, has a significant economic interest.
For the purpose of clause (c), an equity interest that comprises more than 5% of all the equity interests in a corporation or organization is considered a significant economic interest.
For the purpose of this Act, 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.
The purpose of this Act is to enhance the transparency and public accountability of the decision-making processes followed by a public sector entity that uses the P3 procurement method for a major capital project.
This Act applies to every major capital project of a public sector entity for which the P3 procurement method is used, but only if the procurement process is initiated after this Act comes into force.
This Act binds the Crown.
Before initiating the procurement process for a major capital project to which this Act applies, a public sector entity must
(a) have a public sector comparator prepared for the project in accordance with the regulations;
(b) analyze the viability and the expected risks, costs and benefits of using the P3 procurement method, taking into account the factors prescribed by regulation, if any; and
(c) prepare a report of that analysis, which is to include a statement of the expected results.
If the public sector entity engages a consultant to assist it in meeting the requirements of subsection (1), neither the consultant, nor any person or organization with whom the consultant has a significant connection, shall
(a) submit, or assist in the preparation of, a response to the public sector entity's request for qualifications or proposals, call for tenders or any other document that initiates the procurement process for that project;
(b) participate in the provision of any goods, services or construction to be provided for that project by the successful proponent or bidder; or
(c) be appointed as the fairness monitor under section 7 for that project.
If, after completing the requirements of subsection (1), the public sector entity still wishes to proceed with the P3 procurement method, it must
(a) make information about the project and the report under subsection (1) 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 members of the public to comment on it.
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 Act and the procurement laws, agreements, policies and procedures that apply to the entity.
A public sector entity that uses the P3 procurement method for a major capital project must appoint an external consultant to act as its fairness monitor for the project.
The duties of the fairness monitor under the terms of his or her appointment must include the following:
(a) advising the public sector entity on the procurement process for the purpose of ensuring that it is conducted with openness, transparency, integrity and accountability;
(b) reviewing 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;
(c) assessing 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;
(d) making recommendations to the public sector entity regarding the timing and content of its public reports about the project;
(e) preparing a final report to the public sector entity that
(i) summarizes the fairness monitor's duties under the terms of the appointment,
(ii) describes the fairness monitor's review of the procurement solicitation documents and the evaluation of the responses,
(iii) summarizes the fairness monitor's findings about the procurement process, and
(iv) sets out the recommendations referred to in clause (d);
(f) preparing, 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;
(g) any additional duties prescribed by regulation.
The public sector entity must
(a) submit the fairness monitor'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 and for one year after the end of that term.
Neither the fairness monitor for a project, nor any person or organization with whom the fairness monitor has a significant connection, shall
(a) submit, or assist in the preparation of, a response to the public sector entity's request for qualifications or proposals, call for tenders or any other document that initiates the procurement process for that project; or
(b) participate in the provision of any goods, services or construction to be provided for that project by the successful proponent or bidder.
A public sector entity that uses the P3 procurement method for a major capital project must prepare a report 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 four 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 allowed by regulation for that type of project.
The public sector entity must
(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.
For the purpose of enabling the Auditor General to review and comment on a fairness monitor's report and contract summary under section 7 or a public sector entity's reports under section 8,
(a) the Auditor General is entitled to access
(i) all documents and records of, or in the possession or control of, the fairness monitor, 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 fairness monitor, the public 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.
Sections 18 to 21, 24 and 25 of The Auditor General Act apply, with necessary changes, in relation to the Auditor General's powers and duties under this section as if they were powers and duties under that Act.
The Auditor General may submit a report about a review under section 7 or 8 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.
If the Auditor General's comments about a report under section 7 or 8 include a recommendation for the public sector entity, the public sector entity must
(a) consider the recommendation and adopt a response 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.
The Lieutenant Governor in Council may make regulations
(a) prescribing one or more types of arrangements for the purpose of the definition "public-private partnership" in subsection 1(1);
(b) prescribing requirements for public sector comparators that are required under clause 5(1)(a);
(c) prescribing factors to be considered when analyzing the viability and the expected risks, costs and benefits of using the P3 procurement method, as required by subclause 5(1)(b)(i);
(d) respecting the public consultation process required by subsection 5(3), including requiring a public sector entity to prepare and publish a report on its public consultation;
(e) prescribing additional duties to be given to a fairness monitor under section 7;
(f) prescribing information to be included in a contract summary under clause 7(2)(f);
(g) respecting reporting required by section 8;
(h) respecting any matter the Lieutenant Governor in Council considers necessary or advisable to carry out the purpose of this Act.
This Act may be referred to as chapter P245 of the Continuing Consolidation of the Statutes of Manitoba.
This Act comes into force on a day to be fixed by proclamation.
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