I have often written about what to me are the unusual and sometimes strange characteristics and actions of federal government procurement, but recent experience has shown me that we are not alone. During work with a client in the broader public sector, I found several procurement elements that caused me to shake my head.
The first topic to catch my attention: the organization had few written procedures setting out the “hows” and “whys” of its procurement activities. The procurement staff told me that they had learned their trade on the job. While in some cases they had joined the organization with previous procurement experience, finding out how they were supposed to do their jobs had been a process of trial and error.
Their most frequent source of guidance was old files – how things had been done in the past. Their practice was to search out what appeared to be relevant information, and take bits and pieces from here and there that seemed appropriate to their current responsibilities.
If the resulting work succeeded in passing through the various review and approval stages, obviously it had to be fine.
Right.
As I probed further I found an interesting clause apparently used in some procurement actions. It contained a word (that frankly I forget now) that I had never seen before, so I looked it up on the Web and found it to be a legal term meaning putting off or postponing a timeline while matters were dealt with.
Sounds good? I then talked to the lawyer responsible for the organization’s procurement matters – who had never heard of the term. Obviously that clause had been developed and put into use without legal review; not surprising given my first point above.
One can just envision the result were that lawyer called upon to defend the organization in a legal action founded on that word – or any contract.
It gets better.
Would that contract clause – or any other – have mattered in any event? Back with the procurement staff, I was told by some that in their view bidders and contractors did not bother reading the procurement documents in detail – because those suppliers knew that in the event of a dispute any court would find many of the clauses unenforceable anyway.
Scary.
If you stand back from those specifics, un-focus your eyes a bit and look at the picture that emerges, you can easily see a disturbing scenario: procurement documents developed on a hit-and-miss basis, including potentially meaningless clauses that quite possibly the organization itself did not understand, with perhaps significant gaps in important information that should have been included. And, therefore, little sound basis for managing any ensuing contract and potential disputes.
It took me down memory lane to three events.
While a public servant I was asked to engage a particular service provider to deliver a specific result quickly. This provider was clearly qualified to do the work; due to the low dollar value there was no requirement for a competition; and I had the delegated authority to put the contract in place. The resulting agreement was verbal, short and sweet: the provider would deliver a paper setting out specific content, within a specified period, and for an agreed to price. However, it took some work to persuade “the system” that putting together a formal written document full of clauses would be a waste of time. My verbal contract with its three simple elements was binding: adding additional terms and conditions after the fact would have been quite inappropriate.
Some years later a new deputy minister, told that the department included in all of its contracts a discretionary audit clause, asked how often the clause was actually invoked. “Never,” he was told. “Get it out, then,” he said, which to me was both a specific instruction relating to that clause and a more general and pragmatic direction: only include in procurement documents terms and conditions that are relevant and required.
After leaving the public service, I sought to register in a federal procurement database used to identify potential professional services providers. Going to the registration website, I found that in order to register I would have to read, understand and agree to comply with over 70 printed pages of terms and conditions – this, without including content that might be applied to any given requirement.
I did not register.
The bottom line: replace KISS with KISRR: Keep it Short, Relevant and Required.
