procurement: fundamentals to forward thinking
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6 October 2016
RISK TO REWARD SEMINAR SERIES:
GRAHAM RAGANPHUONG T.V. NGO
STEPHANIE PEARCE
PROCUREMENT: FUNDAMENTALS TO FORWARD THINKING
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OVERVIEW
• Introduction to Procurement Fundamentals
• Perspective: Bidder vs. Owner
– Conflict of Interest
– Conducting a Fair Process
– Clarification of Q’s and A’s
– Sole Sourcing Contracts
– Selecting a Winning Bidder
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OWNER
BIDDER
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Conflict of Interest
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Conflict of Interest
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Definition of Conflict of Interest
• “Conflict of Interest” is a situation in which financial or other personal considerations have the potential to compromise or bias professional judgment and objectivity.
• An “Apparent Conflict of Interest” is one in which a reasonable person would think that the professional’s judgment is likely to be compromised.
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Owner
• Take all possible steps to prevent and resolve any real, apparent or potential conflicts of interest.
• Proactive disclosure of conflict is key
• A bidder or prospective bidder may need to be disqualified in order to preserve the integrity of a procurement process
• Important to clearly define the circumstances that may constitute a conflict of interest in order to ensure that a decision to disqualify is transparent and defensible
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Bidder
• Internal compliance – ensure that all stakeholders are aware of and in compliance with requirements to avoid COIs
• Proactive disclosure of conflict is key – complete and accurate completion of COI declarations or certifications
• Appropriate Communications- exercise caution during the procurement process
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Conducting a Fair Process
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Owner
• Fairness, openness and transparency
• Internal procurement polices
• Common Law Principles
– Duty of good faith
– Duty to disclose material information
– Duty to disclose the rated criteria
– Tender deadlines are to be strictly enforced
– Duty to only accept compliant bids
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Bidder
• Common Law Principles
– Duty of good faith
– Duty to disclose material information
– Duty to disclose the rated criteria
– Tender deadlines are to be strictly enforced
– Duty to accept only compliant bids
– Duty of the bidder to honour its tender
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Clarification of Qs and As
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Clarification of Qs and As
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Inquiry Process
• The inquiry process is often the best opportunity
in the bid process to dialogue with the soliciting party
• Bidders can seek clarification or object to a requirement
• Questions and answers get incorporated into the RFP as amendments, and are provided to all bidders
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Owner
• Ensure the information provided is not misleading
• Questions and answers should be provided to all bidders
• Answers should be incorporated into RFP as amendments
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Bidder
• Don’t miss the boat – If you have a question, ask!
• Act quickly – Don’t “wait and see”
– It is incumbent upon the bidder to seek clarification or object to the requirement
– Bidder bears the onus to seek clarification before submitting a bid if they believe the wording is unclear or ambiguous
• Be mindful of mandatory requirements
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Sole Sourcing Contracts
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Sole Sourcing Contracts
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Sole Sourcing Contracts
• Less competitive procurement process where government entity able to contact a sole or single supplier or a number of suppliers individually
• If under the CITT jurisdiction
– Trade agreements apply
– Sole sourcing can be legally challenged
• Public entities outside of CITT jurisdiction/private entities:
– Can self-impose policies against sole-sourcing
– No common law legal duty to engage in open and competitive procurement processes
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Owner
• Public vs. private
• Exception to competition – onus is on the owner to show this method is appropriate
• Expediency or convenience won’t cut it
• Increased risk
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Bidder
• Selected as sole source
• Objecting to selection of a sole sourcing provider
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Selecting a Winning Bidder
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Owner
• Follow the RFP
• Follow the process
• Minimize ambiguous requirements
• Do not evaluate undisclosed criteria
• Award to winning bidder
• Record Keeping
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Bidder
• Ensure compliance with all mandatory requirements
• Challenging after the selection
• Forum and process
• Evidentiary issues
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QUESTIONS?
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CONTACT US
Stephanie PearcePartner
613-783-8842
Phuong T.V. NgoPartner
613-786-0236
Graham RaganPartner
613-786-8699
Gowling WLG is an international law firm comprising the members of Gowling WLG International Limited, an English Company Limited by Guarantee, and their respective affiliates. Each member and affiliate is an autonomous and independent entity. Gowling WLG International Limited promotes, facilitates and coordinates the activities of its members but does not itself provide services to clients. Our structure is explained in more detail at gowlingwlg.com/legal
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