Monday, 2 May 2016

Sunlight is the Best Disinfectant

Collusion and Corruption in Canadian Construction

By coincidence, around the same time as Dyson Heydon was delivering his Royal Commission’s report to the Australian Government, in Canada another Commission had also found collusion and corrupt behaviour in the construction industry in Quebec. The problems of collusion and corruption are of course not unique to Australia and Quebec, as the Netherlands twelve years ago and Spain in 2014 demonstrate.

The findings from both inquiries on organised crime and a culture of lawlessness in the construction industry are disturbingly similar. Both Commissions identified various causes for the illegal activities they found to be pervasive in construction. How many recommendations get implemented by their respective Governments remains to be seen, although the Commissions’ findings and recommendations provide all the justification needed.

The Report of the Commission of Inquiry on the Awarding and Management of Public Contracts in the Construction Industry, headed by Justice France Charbonneau, was released in November 2015. The Report (4 volumes and 1,741 pages) made 60 recommendations to prevent collusion and corruption in the construction industry, and links with organized crime. Unfortunately, the report is in French so this post is drawn from English language coverage, not the original documents (including here for the recommendations, here for the main witnesses and their testimony, and here for context).

Following a 2009 Radio-Canada broadcast into corruption inside Quebec’s biggest construction union, a joint investigation was carried out by Canada’s Competition Bureau and Unité Permanente Anticorruption, an anti-corruption unit established by the Government of Quebec. The investigation uncovered evidence of a scheme giving preferential treatment to a group of contractors in municipal contracts, mainly for infrastructure projects.

As a result of that investigation, 77 criminal charges were laid against nine companies and 11 individuals in 2012. These charges included 20 counts of bid-rigging under the Act against nine companies and 24 counts of bid-rigging against six individuals. Other criminal charges included corruption in municipal affairs, breach of trust, improperly influencing municipal officials, fraud, production and use of counterfeit documents, secret commissions, misrepresentations or false statements, extortion and conspiracy.

The Charbonneau Commission was set up by the Government of Quebec in 2011 to look at cases of collusion and corruption in Montreal over 15 years between 1996 and 2011. The terms of reference included financing of political parties and organized crime in the construction industry, and recommendations for remedial measures to identify, eliminate and prevent collusion and corruption. Another 37 people, including two mayors, were arrested in 2012.

The commission shone a light on politicians’ and public officials’ relationship with construction and related service companies over more than two decades. It concluded that a link existed between political party financing and public contracts, calling the practice deep rooted and systemic. Several recommendations focused on reforms to political financing rules. Quebec’s strict laws governing political donations mean parties are unable to raise enough money for campaigns from individuals but are prohibited from receiving corporate donations. What happens instead is corporate donations funneled through proxies. This is illegal.

The scale of the system, however, extended much further. It linked construction firms, many with mafia ties, and a cabal of consulting engineers to politicians and managers in Montreal. Corrupt practices included kickbacks, illegal campaign contributions, rigged contracts with mafia payoffs, limiting competition for projects to a favoured few with the right political and/or mafia connections, and using threats to discourage competition by persuading potential bidders to withdraw. The Commission differentiated this kind of tacit collusion, where reputable firms withdraw from the market, from political corruption, where companies illegally contribute to political parties or candidates.

The Commission investigated the consulting engineering industry in Quebec and made a number of significant recommendations. Quebec is the only jurisdiction in Canada that does not allow a professional order to impose disciplinary sanctions on a partnership or a corporation that provides professional engineering services. This limits its supervisory powers to engineers as individuals.

Corrupt public authorities imposed unreasonably short deadlines for tenders, to benefit one bidder. Substantial and late alterations to a project, often described in addenda, without adjusting the tender filing deadlines, had the same effect. The case of Montreal's procurement of water meters was cited as an example of this.

Commissioner Charbonneau concluded corruption and collusion are "far more widespread than originally believed" and found that organized crime had indeed infiltrated the industry. The Italian Mafia was deeply involved in the industry and significant sections of the report were blacked out because of criminal cases before the courts.

Commissioner Charbonneau found several causes, connected with the public procurement of construction projects, for the various schemes uncovered during the inquiry. Major failings in procurement strategies, in particular the lack of expertise, resulted in public bodies being exposed to a high risk of collusive agreements. For example, the non-negotiable tariff contracts, called “rate-setting contracts”, set a price for manufacturing and laying asphalt a geographical area. The effect is that the contracts allow the asphalt plants owners to divide up territories.

There were also transparency issues. Examples were the release on request of the list of contractors who have the specifications or tendering documents, and the release of cost estimates for projects. The Commission noted that it was well-known the bid bonds Montréal requires for tenders are 10% of the estimated cost of the project. By disclosing the amount of the bond security required, the City was publishing the amount that it expected to pay.

A small group of union halls were allowed to dictate who is hired for each job, although around 70 percent of Canadian construction workers are not unionized. The testimony at Charbonneau was often salacious, with tales of the Province's largest union being infiltrated by the Mafia and Hells Angels, death threats for dissenters, million dollar investments of union funds in biker-owned strip clubs and massive financial fraud involving some labour leaders.

The Commission was asked to make recommendations, and the first recommendation was a Procurement Authority, a centre of expertise for procurement processes to support and oversee public bodies. In the words of the Commission: “The lack of personnel and the loss of expertise may have created fertile soil for collusion.” The Commission also recommended the various public authorities consolidate their internal expertise in construction.

The second recommendation was to vary the rule requiring contracts to be awarded to the lowest conforming bidder, arguing the strict rule of winning public contracts as lowest tenderer facilitated collusive agreements, based on the cartel's ability to control the results of calls for tenders.  Also the mandated 15 day tender period should allow adjustment for project complexity.

The Commission recognized long payment delays restrict competition in the industry, a factor in the creation and continuation of collusive agreements. Contractors bear the cost of payment delays and the lack of funds limits the numbers and growth of contractors. In 2013, more than three-quarters of contractors were said to have not responded to at least one call for tenders, because they viewed the payment clauses as abusive or they anticipated payment problems.

The other recommendations covered whistleblower protection, financial transparency, and relationships between officials, politicians, unions and contractors. There was some criticism that the recommendations were too moderate and lacked bite.

In its details the operation of this system was unique to Quebec and Montreal, due to cultural and institutional factors. However, the incentives inherent in the transactions between construction contractors and governments inevitably provide opportunities for side deals, collusion and corruption. And in Quebec these had become entrenched. Despite critics claims the Charbonneau Commission was too expensive and ineffective it did what any good anti-corruption inquiry should do, shine a light on the institutions and people involved. Sunlight is the best disinfectant.

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