The president of the Treasury Board gave a speech in November at the University of Ottawa for the launch of the Open Government Action Plan. His message was clear: the new Directive on Open Government requires departments “…to maintain an ‘open by default’ position for the release of government data and information of business value – provided there is no breach of privacy, confidentiality or security measures.”
Government procurement actions as reported by the media shortly thereafter appear to have gone in entirely the opposite direction.
The Ottawa Citizen reported that the Procurement Ombudsman investigated a supplier complaint about a procurement. According to the article, the department in question repeatedly refused to provide the Ombudsman with the information considered necessary and appropriate to determine whether the procurement had been carried out fairly and without discrimination.
This should have been a no-brainer, because what disqualified the complainant was its failure to meet a mandatory requirement. That’s about as simple as you can get – mandatories are black and white. The underlying question then is whether the mandatory criterion was appropriately set so as to not discriminate unfairly against one or more suppliers. That, too, should be easy to address.
Why, then, the refusal to cooperate? When you refuse to explain your evaluation process and results to an outsider who has the need to know (the Ombudsman was following his legal mandate) it is like waving a red flag in front of a bull: the messaging is that you have something to hide.
Now, conclusions based solely on media stories are dangerous at best. Still, Minister Tony Clement says that the government will be open – and then a major department seems to not be. Do we value the words or the action?
There is more. The article also quoted a departmental spokesperson saying that the department had “cooperated with the Office of the Procurement Ombudsman throughout the investigation.” On the surface words with contradictory action which leads me to a second “situation.”
Several days later the Citizen reported that the government had paid $35 million to the plaintiff in a legal action against the government. The settlement was apparently arrived at after the government decided to not appeal a court decision last spring that the government pay the plaintiff almost $40 million in damages and costs. In a really perverse way it looks like a good deal – “saving” taxpayers $5 million – but that’s not the story.
What is disturbing starts with some of the words used by the judge to describe the government’s actions. They included “outrageous,” “reprehensible,” and “shocking.” Shortly thereafter, Auditor General Michael Ferguson in his May 2014 report concluded that “we noted several steps in the procurement process that were not in compliance with the Treasury Board Contracting Policy and the PWGSC Supply Manual,” and that “taken cumulatively, these decisions and actions did not facilitate access and encourage competition and resulted in limiting the response to one service provider.”
It is clear that the government did something reprehensible, and that brings me to another story, the decision last April by Public Works and Government Services to strengthen its integrity provisions. What has been highlighted by the media in recent weeks is that companies convicted of a broad range of offences face being barred from government contracts for 10 years. The business community has been fast to note that the actions of one individual can thereby inflict potentially catastrophic damage on a supplier and its other employees.
This is not new. The PWGSC integrity provisions, including the 10 year ban, have been developing since at least 2003. The April changes expanded the list of criminal offences that will trigger the ban, things like bribery of judicial officials, criminal breach of contract, prohibited insider trading, and falsification of books and documents.
Look at the inconsistency. A company convicted is denied government contract opportunities for 10 years, but when the government acts in the same negative regard, the department(s) concerned continue their ability to carry out procurement.
A recent unanimous Supreme Court decision imposes a general duty of good faith in contract performance, noting that “[t]here is an organizing principle of good faith that parties generally must perform their contractual duties honestly and reasonably and not capriciously or arbitrarily.”
Procurement is all about contractual performance. Fair for one should mean fair for all. Perhaps it is time for change: that would be action.
