Last month I wrote about changes relating to the procurement of defence requirements and services. I did not include the procurement of goods in the discussion of limits on ministerial contracting authority, because section 9 (s9) of the Department of Public Works and Government Services Act makes goods very different.
The Minister of Public Works and Government Services has for years had sole authority to procure goods – in effect a monopoly (with a handful of agencies excluded). This stems from s9: “The Minister shall exercise the powers in relation to the acquisition and provision of materiel for the use of any department that are conferred on any Minister or other authority under any Act of Parliament, except to the extent that those powers have been delegated by the Minister.”
This provision gives the minister not the power to procure, but rather the obligation to use the powers given to other ministers by an Act of Parliament. It used to frustrate the Treasury Board Secretariat, because no matter what changes it might have wished to propose to Treasury Board ministers for goods procurement contracting limits, it could not act unless the minister of PWGSC concurred.
I used to be responsible for managing the s9 delegation file, and after a while the question occurred: what exactly are those “any Acts of Parliament”?
I was first told that they are departmental statutes that empower ministers to act in any matters relating to or in support of the mandate of the department not assigned by law to another minister – and this includes procurement. The explanation did not sit right: first, the minister of PWGSC has the legal mandate (assigned by ss 6&7 of the department’s Act, but not as a monopoly service) to procure goods for departments. Thus, those general powers provisions seem to apply to policy and program mandates, not administrative matters.
Another suggestion was that it is the federal Budget – that in voting funds for a department Parliament effectively is enacting legislation (an Act of Parliament) giving ministers the authority to procure using those funds. That also did not sit right: the ability to spend – authorizing money – is not the same as the authority to act. Unless the Budget legislation specifically gives authority to contract, ministers have money, but no more.
I kept looking for some other Act of general application that specifically grants ministerial procurement authority, but could not find one, not even the Financial Administration Act, where one might expect to see it.
Around 2000, though, an interesting idea arose: what if the authority of ministers to procure comes to them naturally when they are appointed – with no specific legislation required? Without such an Act, the Minister of Public Works could not subsequently under s9 exercise the goods procurement powers of another minister. Even were a specific statute to give a minister the authority to procure goods, the Minister of Public Works could use only that power, but not the natural inherent right. In either case, there would then be no monopoly.
I have tried unsuccessfully to get resolution through government lawyers. If I am wrong, could someone give me the “right” answer and close my mental file? But what if I am right? What if the basis of the goods procurement “monopoly” of the minister of PWGSC turns out to be invalid? That would set the cat among the pigeons.
If all ministers and departments could then exercise their inherent authority to procure goods, we might see a significant and potentially beneficial change in goods procurement patterns – more competition by, and better access and more business for, smaller and more local suppliers. It would seem a logical extension of the government’s decision, announced by the Minister of Public Works at CANSEC 2014, to use procurement to encourage job creation, economic growth and prosperity. Granted she was talking about defence procurement – but why should the concept be limited to the defence industry? Why couldn’t – why shouldn’t – every goods-related sector of the economy benefit?
The Treasury Board Contracting Policy already calls for achieving “best value or, if appropriate, the optimal balance of overall benefits to the Crown and the Canadian people.” Best value, as defined, relates to the specific results sought from an individual procurement; looking beyond that to the possible results and benefits for the country would indeed be a change to federal procurement.
A review of this fundamental aspect of procurement could also result in better support to Blueprint 2020.