A reverse what….?

As a steward of taxpayer dollars, municipal buyers face tremendous pressure to get the best price for your organization. This keeps the tax burden low amid always tight budgets. The mantra often heard is “do more with less”.  Often the “best price” isn’t always the “lowest price.” You need the most qualified vendors to give you their lowest possible price, and you need to settle on those prices quickly.

You are already relying on your purchasing staff and group organizations, to ensure the vendors you select are qualified. Are you aware that you can now take savings to a whole new level with Electronic Reverse Auctions? A “reverse what?” you say….  

The term “Electronic Reverse Auction” or “ERA” may not be known to you now but it is a tool that every municipality in Canada will be hearing more of as it becomes a standard part of the municipal procurement tool kit.

The traditional procurement tool kit in Canada consists of tenders and RFPs that function under the notion that bidders get one chance to give you a price which is sealed in an envelope and opened later by the purchasing staff. Once the envelopes are opened, changes cannot be made to the price and the lowest price bidder is duly rewarded, either with the contract outright or by being assigned the most points for that criteria if there are other criteria to consider. What is generally believed is that we received the best possible price…..only we do not have any way of knowing if bidders collectively would have bid lower, had they been given the opportunity to make further reductions in price. We may have gotten the best value that was offered but buyers are left to wonder if we received true market value. Many in the municipal sector are familiar with the terms “municipal premium” or “public sector premium”, usually spoken of in whispers and behind closed doors. We often think that it would have been much less expensive if we were buying the same thing for a private sector organization. A buyer in the private sector likely would have been able to, or even encouraged to, negotiate a better deal.

What if municipal buyers did not have to take the first and only offers presented? What if they could negotiate with the qualified suppliers in a fast, fair and honest way? Could suppliers be allowed to reduce their bid, if they felt it was in their best interest, in order to secure the public contract.       

Until recently, this type of scenario was not realistic in Canada in the public sector, but that has now changed. In 2017 the Canadian Free Trade Agreement and the Comprehensive Economic and Trade Agreement both came into effect. These trade agreements, for the first time, explicitly recognize electronic reverse auctions as a legitimate public procurement method in Canada and include provisions to govern their use in public sector procurement.   

While this is a new development in Canada, reverse auctions have been recognized internationally for many years in leading standards like the United Nations Model Law on Public Procurement as well as the European Union Procurement Directive. Countries around the world, including the US, UK, and Australia, have successfully used reverse auction in municipal procurement for the past two decades with significant savings in a variety of categories of spend.    

An Electronic Reverse Auction (ERA) is an online, real-time purchasing technique which involves the presentation by suppliers of successively lowered bids during a scheduled period of time and the automatic evaluation of bids. A reverse auction can be configured in two ways that align with the traditional procurement process: 1) as the entire competition when price is the only criteria and the winner is the lowest bid at the end of the electronic auction; or 2) as the second stage in a two-stage competition when other quality-based criteria have already been evaluated, in which case the winner is the supplier judged to have the highest overall evaluated bid.

Respected Canadian public procurement lawyer, Paul Emanuelli, stated in his recent whitepaper, Electronic Reverse Auctions: Debunking Myths and Misconceptions, published in 2018:

“The question is no longer whether ERAs can or should be used…. The question is how much further can ERAs be expanded across all sectors, …., to achieve improved process efficiencies and cost savings.”[1]

Emanuelli goes on to recommend that “organizations interested in implementing ERAs should take the following seven steps:

1. Adopt legally vetted Negotiable RFP templates with ERA protocols

2. Update to ERA‐friendly policies and procedures

3. Develop an industry strategy to select the right projects

4. Create a rollout plan to control internal deployment

5. Ensure appropriate internal training and awareness

6. Get initial launch support from experienced advisors

7. Develop a plan for self‐sufficient long‐term use”

For Canadian municipalities, ERA’s represent an opportunity to reduce spending in a disciplined and strategic way. While not fool-proof and certainly not applicable to all purchasing categories, when ERA’s are strategically used, you can expect to generate savings of 8-20% depending on the category. What kind of impact would that level of savings have on your organization?       

Qualified vendors. Lowest prices. Best use of taxpayer dollars. That’s what you get from a reverse auction.

To learn more please contact Craig Milley at Wayfinder Consulting Inc. – Your Procurement & Supply Chain Guide

[email protected]    




New Partnership for muniSERV!

You already know muniSERV.ca offers a full suite of tools for municipalities – most of which are free.

But, we’re always on the hunt for even more new and innovative tools and resources to help Canadian municipalities – and we’ve found another perfect partner!

We’re pleased to announce that muniSERV.ca has entered into a partnership with GoByDesign, for their innovative new platform – BoxOfDocs, The Ultimate Sharing Platform For Canadian Municipalities.

Whether you are updating your existing bylaws or policies, or looking to develop new standards, and want to see what similar municipalities have in place, BoxOfDocs is here to help.

*Bonus Partnership Offer

Now, when you register for free on muniSERV, you can also activate your Free Trial of the BoxOfDocs, Municipal Premium Membership, which lets you effortlessly share documents with other Canadian municipalities and gives you with access to thousands of documents your municipality uses daily!

If you have not committed to being an active member for either muniSERV or BoxOfDocs yet, now is a great time to join both and network with other Canadian municipalities to take advantage of valuable tools and services offered under this new partnership.

Welcome BoxOfDocs!

Susan Shannon

Founder & Principal,

muniSERV & muniJOBS


Top 4 Considerations to Save Money When Improving Citizen Services

By checking your own internal bias you stand a better chance of Finding the best solution

We all want to better our citizens’ services but, when pursuing this goal, what can we do to ensure we are spending the right amount of money on the right plan?  The only way is to look at your citizens, your goals and what you currently have to achieve the right balance between spend and results.

Here are four areas you should consider to make sure you are getting the most for your money.

1.       Understand first. 

·         When creating any plan, the first action should be to understand the needs and wants of your target.  Not all people will have the same issues as you. The only way to know is to ask your citizens, listen intently and believe them. This is particularly true when you think you have solved certain issues already.

·         In modern agile technology development, the practice is to rely on the” voice of the customer”. This is to ensure when the product is complete it meets the needs expressed by the potential buyer.  The same is true in finding the best solution for your citizens.

·         Remind yourself that you are not the citizen. Assume that you do not really know anything about your citizens’ needs. This way you will not try to prove your bias right or dismiss some expressed citizen needs as “not important” or “already solved”.

2.       Look at what you have today.

·         Look at the processes you have today that are at the heart of any of the issues identified by your citizens (e.g. a citizen is not notified when an issue is fixed – perhaps because a work order is lost after a job is completed so there is no record of it being closed).  Ask yourself what vehicles, tools, and processes you are using to meet your “citizen service goals”.

·         Are you using your website to get information out?  Do you have posters in community gathering spaces? Do you have a section every week in the local paper? Do you have a CiRM or a spreadsheet to track issues?  Do you have a written policy that helps all staff to address citizen issues quickly?  Do any of these create or solve the issue expressed by your citizens? These types of questions are key to success.


3.       List all potential solutions.

·         Improving citizen services may not require buying new hardware or software and spending a bundle on installation and configuration.  A successful solution, regardless of how great it is, may very well need to be coupled with bettering an internal process. Or maybe it is a simple matter of increasing the awareness of your website or creating posters to inform citizens about how you do things and why.  It might also be possible to improve services by repurposing technologies that you already have in hand (e.g. using your CRM in a unique way or changing access permissions so more people can answer the questions posed by citizens).

·         Listing solutions should not be an excuse to try to make current software do things it was not meant to do. Look at the process you want to have first then find the solution that best fits it.

·         Do not be afraid to look at human resource factors.  Maybe the answer is to better train staff in citizen resolution or conflict management (customer service skills). Maybe you need to ensure that all staff members know your policies and how they should be implemented.

4.       Consider technology solutions by task, not product name.

·         List your “service goals” and rate the importance of each of one. The best way is to break down your list into the following columns: “must have”, “good to have” and “nice to have”.

·         If you think that technology might solve some of the issues, list only the “service goals” you want your software to address, i.e. not what features or what brand will be the best solution.

·         Remember the technology may not need to be citizen facing to increase satisfaction. It might just enable an improvement in your processes to offer better, faster and more reliable citizen services.

If you consider these four areas, you will likely find a solution with that best fits your budget, and that will have the largest impact on your citizens.  By checking your own internal bias, you stand a better chance of making sure the right process, tracking and communication methods (internal or external) are part of your change, and the costs may well be less than you thought.

At AccessE11 we understand that paper systems and endless email chains are not productive when it comes to citizen services and support. There are too many opportunities for an issue to fall through the cracks, or for delays in responses to issues.

We promote instilling processes that make sense and that are easy to adopt so that everyone in the municipality can become a citizen support expert.  Please visit us at www.accesse11.com to find out more.


Dealing with Escalated Situations in Your Workplace

Resolving workplace conflict is an expected part of the job managers and Human Resource Practitioners. Whether you work in education, healthcare, human services, business, or any field, you might deal with angry, hostile, or noncompliant behaviour every day. Your response to the defensive reaction is often the key to avoiding a physical confrontation with someone who has lost control of their behaviour.

These ten De-Escalation Tips will help you respond to challenging behaviour in the safest, most efficient way possible.

  1. Be empathetic and non-judgmental
  2. Respect personal space
  3. Use non-threatening nonverbal communication
  4. Avoid overacting
  5. Focus on feelings
  6. Ignore challenging questions
  7. Set limits
  8. Choose wisely what you insist upon
  9. Allow silence for reflection
  10. Allow time for decisions


 To help you towards more efficient conflict de-escalation and resolution, the following basic steps can be followed:

  • Obtain the name of the person with whom you are speaking: People respond favourably to their own name. It also makes the conversation more personal. Ask for the person’s name early in the piece and use it throughout the discussion.
  • Use Active Listening: Clarifying, paraphrasing and using open-ended questions ensure that the individual you are speaking with knows you are aware of their situation and frustrations. Resaying a person’s own words back to them demonstrates that you have understood entirely what they were trying to say.       
  • Show support and suspend judgement: Empathy needs to be shown during conflict situations. Respecting the other person’s point of view even if you do not agree entirely will be the first step to resolving the conflict. 
  • Get them to agree and say yes: Having the person agree with you on general factual points leads the conversation towards a more favourable outcome. If you can show that you have understood their point of view by making clarifying statements you generate a state where the other person must reply with an affirmative response. The sooner you can get the person to say yes then sooner the conflict will de-escalate. It always works.
  • Avoid clichés: The worst of these being “Calm Down”. Did you ever notice how people who tell you to calm down are the ones who got you mad in the first place? Saying those words during a verbal conflict usually gets the classic retort “I AM CALM” very loudly usually with an animated hand gestures as well.       
  • Show empathy: You need to show compassion and understanding and give the conflict your full attention. Do not make impulsive decisions. Take the time to work through the problem.
  • Consistency in Courtesy: The person you are dealing with first thing in the morning deserves the same level of respect, civility and patience as the individual you are dealing with at 2 in the afternoon. They warrant the same high level of service and professionalism as the first person you spoke to. You need to maintain that position of positive brand ambassador and an excellent professional service.

There are many physical aspects of being mindful of in conflict situations. It is important always to be aware of features of conflict such as your body language, your emotions, your judgement, and your initial thoughts. Keeping these in mind is essential when trying to de-escalate a problematic situation.

Monika B. Jensen is the principal of the Aviary Group, consulting company that address workplace discord.  For more information, visit www.aviarygroup.ca





What’s a GPO and Why Should You Care?

What’s a GPO and Why Should You Care?

by Lise Patry BA | Sc | LLB | ICD.D | NECI Instructor| Patry Law

A group purchasing organization, or ‘GPO’, is an entity whose fundamental purpose is to allow its members to combine their purchasing power to benefit from volume pricing for goods and services. In addition to reduced prices, buying through a GPO can shorten the procurement cycle, save staff time and help entities avoid the risks associated with a public procurement process.

In Canada, GPOs have become significant players in the health care and education sectors. Beyond these sectors however there appears to be scarce take-up for GPOs and one has to ask why?  

Perhaps it’s because of the historical lack of clarity around whether public procurement rules allow public sector entities to use GPOs. The Agreement on Internal Trade (AIT) only addresses GPOs (which it refers to as “buying groups”) in a cursory fashion in the annexes applicable to Crown corporations and MASH sector entities. Beyond the AIT, it’s rare to find references to GPOs in government procurement frameworks, which creates uncertainty as to their legality or acceptability.

The Canada Free Trade Agreement (CFTA) clarifies the rules around using GPOs, making it easier for public sector entities to add GPOs to their menu of sourcing options. The buying group provisions in the CFTA apply to all covered entities; governments, Crown corporations and MASH sector. When purchasing through buying groups, like the AIT, the CFTA requires that covered entities ensure the procurement process is carried out in accordance with the CFTA but the CFTA introduces an exception to this rule where the entity has little or no control over process. Covered entities using GPOs are required to publish a notice of their participation with a GPO at least annually on their tendering website.

With the CFTA explicitly recognizing the acceptability of using buying groups, procurement officers would be remiss not to explore adding GPOs to their menu of sourcing options. Before doing so, however, it’s important to check with legal counsel to ensure the organization’s procurement framework allows the use of GPOs. If the policy framework allows it, before moving ahead it’s equally important to analyze the pros and cons of using a GPO as there is no ‘one size fits all’ for sourcing options in procurement; GPOs may generate significant benefits for some organizations but not for others.  

Watch for future articles on this topic, including the next in this series that examines the pros and cons of using GPs in procurement.

Lise Patry, an instructor with NECI, is a lawyer and former business executive with a strong background in technology and more than 20 years of business and legal experience in the public and private sectors. As principal of Patry Law, in addition to general law, she offers virtual counsel services and specialized expertise in contracts, licensing, government procurement and corporate governance. She can be reached in Ottawa at 613-833-7488 or [email protected]

Readers are cautioned not to rely upon this article as legal advice nor as an exhaustive discussion of the topic or case. For any particular legal problem, seek advice directly from your lawyer or in-house counsel. All dates, contact information and website addresses were current at the time of original publication.

National Education Consulting Inc.

Phone: (250) 370-0041     Toll Free: (888) 990-7267

[email protected]


Leadership in Supply Chain

by Larry Berglund, SCMP, MBA, FSCMA

Presentations Plus Training & Consulting Inc.

Ideas are easy. Implementing them is the challenge.

Leadership in organizational structures is fleeting. Leaders take on the tough tasks and provide a vision and direction for attaining their goals. Managers follow the plan and try to insert efficiencies along the way. In supply chain management we often use the term “leading practices” when in actuality, we are referring to common practices across a sector.

When one organization continues to issue competitive bidding process for services, following the practices of its peers, we consider this to be following a leading practice. When another organization is first in its sector to adopt a vested outsourcing strategy, we are observing leadership in action

Leaders are not satisfied with the status quo. The need to drive innovation is inherent in every leader and thus every industry. Followers value leadership because while they can perceive when something needs to change, they tend not to accept the professional and personal risks associated with driving that change.

Change is perhaps the only true constant – but leaders must articulate a vision before real change can happen. Such a vision does not necessarily come from a brief and illuminating epiphany, but more often from leaders’ abilities to perceive that which is beyond the noise in the market or the confusion in the messages. Leaders instead appreciate nuances during the discovery and presentation of new ideas while accepting a reasonable level of risk. Leaders are also not too humble to draw from successful ideas of others and give credit where due.

What makes a person a leader? First, it is their self-conviction in knowing what needs to be done and their commitment to following that goal. They realize when it is beyond their personal resources to reach their goals without the commitment of others. A leader is less concerned with the how of change, allowing for their followers to utilize their own ideas and energy for carrying out that change. A leader is more focused on the why of change.

Leaders paint the picture of the future and have their audience – their followers – understand how their roles can complement the vision. This aspirational aspect of leadership is concurrent with the inspirational communications within the organization and to its external stakeholders.

Leaders need to create the buy-in. Without followers’ commitment to the vision, success is doubtful or compromised. Buy-in requires credibility, a focus on common interests, shared passions, resilience and an emotional connection created by the leader. People need affirmation that a leader is authentic before they will hear the new message. Leaders anticipate both a certain level of resistance and the occurrence of conflicts. They need to listen to concerns and adequately address them in their action plans. A guiding strategy requires an approach in accord with the organization’s values. Changes in behaviour indicating a stronger alignment with the leader’s vision can provide evidence that the buy-in is taking place.

In supply chains, we see these changes in behaviour when leading practices – such as adopting total cost of ownership – replace pursuing the lowest cost; when public organizations utilize the buying power in procurement to positively affect social and economic development; when targets are set to ensure diversity across supply chains; when we see inclusive opportunities for people who face employment barriers; and when value for money exceeds arbitrary budget limits and considers benefits to the community as a whole. That is leadership. Leadership begins when we start to think outside the books.

Larry has been in the supply chain management field as an author, manager, business trainer, academia, and consultant for many years. Larry has worked in both the private and public sectors. Recently he has been co-facilitating NECI eSeminars, classroom sessions, and online modules. His new book, Good Planets are Hard to Buy is now available on Amazon.com

Readers are cautioned not to rely upon this article as legal advice nor as an exhaustive discussion of the topic or case. For any particular legal problem, seek advice directly from your lawyer or in-house counsel. All dates, contact information and website addresses were current at the time of original publication

National Education Consulting Inc.

Phone: (250) 370-0041     Toll Free: (888) 990-7267

[email protected]


Is it a good idea to add a “this RFx is non-binding” clause in our RFx template?

Is it a good idea to add a “this RFx is non-binding” clause in our RFx template?

by Lise Patry, ba sc (chem eng), llb, icd.d, Patry Law

Owners seeking shelter from the legal risks associated with Contract A are increasingly including a clause reading: “this RFx is non-binding and therefore does not create Contract A” into documents that otherwise have the elements of a binding RFx.

Is this a good idea? It certainly seems to be. At common law, no freestanding duty of fairness is owed to bidders in a non-binding RFx process. Seems like a no brainer – if you want to avoid Contract A, just make the RFx non-binding!

How to design a non-binding RFx

Although this strategy makes sense in many cases, keep in mind that whether an RFx is binding or non-binding is matter of substance and not form. Courts will look at a variety of factors to determine whether the parties intended to enter into a binding contract – Contract A – by the submission of a proposal. A statement that “no Contract A is created,” while important, is just one of the many factors courts examine.

The most comprehensive summary of factors courts consider when determining whether the parties intended the process to be binding is from the trial level decision Tercon Contractors v. BC 2006 BCSC 499, and presented as the following list in Topsail Shipping Company Limited v. Marine Atlantic 2013 NLTD 163 (upheld on appeal):

  1. The irrevocability of bids or proposals submitted; 
  2. The formality of the process; 
  3. Whether bids or proposals are solicited from selected parties; 
  4. Whether the identity of bidders or proponents is confidential;
  5. Whether there is a deadline for the submission of bids or proposals; 
  6. Whether a security deposit is required; 
  7. Whether bid or proposal selection or evaluation criteria are specified; 
  8. Whether there is a right to reject proposals; 
  9. Whether there was a statement that this was not a tender call; 
  10. Whether the work or service for which proposals are submitted will definitely proceed; 
  11. Whether compliance with specifications was a condition of bids or proposals; 
  12. Whether there is a duty to award contract ‘B’; 
  13. Whether contract ‘B’ had specific conditions not open to negotiation. 

Generally, the more formality there is in the process, the more it points to an intention to conduct a binding RFx. As we saw in the case of Topsail, even if many of the above criteria point to a non-binding process, courts will often strain to conclude a process was legally binding in order to hold an owner accountable for unfair conduct. Therefore, to successfully avoid Contract A, owners are advised to design a process that is clearly non-binding having regard to all of the above factors.  

Can a “this RFx is Non-Binding” statement, on its own, effectively negate Contract A?

When determining whether an RFx is binding, courts will strive to respect the parties’ intention and will look at the express and implied terms of the RFx in the context of the above list of factors. The insertion of a “this is a non-binding RFx and no Contract A is created” clause, as highlighted above, will help support an argument that the RFx was intended to be non-binding, but is not in itself determinative. As we have seen with privilege and disclaimer clauses, even in the face of clear RFx provisions protecting the owner, courts may refuse to enforce the clauses when to do so would compromise the integrity of the tendering process. Since a non-binding RFx provision is really just another type of disclaimer clause, judges will likely subject them to the same judicial scrutiny and uncertainty, particularly if it’s the only factor pointing to a non-binding process.

Owners seeking to protect themselves by using a ‘non-binding RFx’ clause in an otherwise binding RFx should therefore not derive too much comfort from the protection it can offer as courts may, under certain circumstances, refuse to enforce it.

A good idea but not a perfect solution

Given the above, is it a good idea to include a “this RFx is non-binding” in your standard RFx document to avoid Contract A duties? In our view, yes. Like liability disclaimers and privilege clauses, these provisions could provide strategic leverage in negotiations with disgruntled bidders and may be legally enforceable under certain circumstances. In deciding to use these clauses, however, owners should be aware that, while they may be a good idea, if put to the test in court they may not act as a perfect solution to the Contract A problem.

Rather than simply inserting a ‘non-binding’ clause in your standard RFx template, a more effective approach is to work with your legal and other advisors to create a template that is specifically and thoroughly designed to be non-binding with regard to all of the above factors. You can then decide when and how that instrument is to be used, keeping in mind that in some cases Contract A might be the most efficient way to proceed.

Lise Patry, an instructor with NECI, is a lawyer and former business executive with a strong background in technology and more than 20 years of business and legal experience in the public and private sectors. As principal of Patry Law, in addition to general law, she offers virtual counsel services and specialized expertise in contracts, licensing, government procurement and corporate governance. She can be reached in Ottawa at (613) 730-5959 or [email protected]

Readers are cautioned not to rely upon this article as legal advice nor as an exhaustive discussion of the topic or case. For any particular legal problem, seek advice directly from your lawyer or in-house counsel. All dates, contact information and website addresses were current at the time of original publication.

National Education Consulting Inc.

Phone: (250) 370-0041     Toll Free: (888) 990-7267

[email protected]


Canada Free Trade Agreement Implications


CFTA Implications

by Lise Patry, B.A.Sc., LLB, ICD.D

Will the Canadian Free Trade Agreement that came into effect July 1 impact my ability to engage with GPOs?

Thanks for this interesting question. It will come as good news to many that in fact the CFTA provisions clarify rules around the use of buying groups

Under the AIT, we only see a reference to buying groups in the Annexes applicable to Crown corporations and MASH sector entities. Covered entities wishing to purchase through buying groups must ensure the activities of the buying groups are carried out in a “manner consistent with this Annex”.

In the CFTA, the buying group provisions apply to all covered entities and additional rules have been added. Covered entities purchasing through buying groups:

  • no longer have to ensure the procurement is consistent with the CFTA if they have little or no control over the procurement process; and
  • must publish a notice of participation with the buying group at least annually on their tendering website. The notice must direct potential suppliers to the buying group tender notices website if it is different than the tendering website used by the covered entity.

Lise Patry, an instructor with NECI, is a lawyer and former business executive with a strong background in technology and more than 20 years of business and legal experience in the public and private sectors. As principal of Patry Law, in addition to general law, she offers virtual counsel services and specialized expertise in contracts, licensing, government procurement and corporate governance. She can be reached in Ottawa at (613) 730-5959 or [email protected] This article originally appeared as a series of blog posts in September 2016 at patrylaw.ca. It has been adapted and is used by permission.

Readers are cautioned not to rely upon this article as legal advice nor as an exhaustive discussion of the topic or case. For any particular legal problem, seek advice directly from your lawyer or in-house counsel. All dates, contact information and website addresses were current at the time of original publication.

National Education Consulting Inc.

Phone: (250) 370-0041     Toll Free: (888) 990-7267

[email protected]


BC AGLG Flags Management of Vendor Performance

The Auditor General for Local Government in BC has published a series of booklets designed to help improve government performance and complement its performance audit reports.   Although specifically targeted to local government in BC, these booklets provide a wealth of information, templates and suggestions that can help guide any Canadian public sector organization.

In a January 2016 publication the AGLG highlights vendor performance management as one of three topics to improve achieving value for money in operational procurement. It discusses key elements of a vendor performance management framework, best practices in managing vendor performance and includes a number of templates that can be adapted for use by any organization. The full document can be accessed at https://www.aglg.ca/app/uploads/sites/26/2017/04/Perspectives-T1-T1-PDF.pdf.

This important report complements PSPP 203 – Managing and Evaluating Contract Performance – and augments many of the examples and templates we cover in that course. As an organization that works with public sector right across the country, we see repeated examples of major procurement and contract mishaps related to incomplete or inadequate vendor performance evaluation. Users and business clients become frustrated when the procurement department ‘continues to engage the poor performers’. Yet the procurement department is not provided with enough (or any) information about performance issues to solve this problem. Outstanding vendors see the less than stellar performers continue to be awarded contracts, so they are de-motivated to keep up their own performance standards. All contract performance then slips to the lowest common denominator, further frustrating the users and eroding value for money from government spending. And as we know, terminating a contractor without adequate performance documentation can lead to expensive and protracted lawsuits, unwanted publicity and consumption of valuable resources that could best be directed elsewhere.

If any of this is starting to sound familiar, you or your staff may want to join us online, starting June 26, for a cross-country cohort in <PSPP 203>. (link to 203 reg for june 26 session)   Spanning four weeks, this course takes approximately 3 hours of time per week, and delves into many detailed examples, illustrations and best practices related to this important aspect of the procurement and contract management cycle. The analogy that we often use is that if the RFX process is the ‘wedding’, then the contract management process is the ‘marriage’ – that’s where the hard work really takes place! Determining how performance will be measured and managed must be thought about in the planning stage, carefully described in the RFX and resulting contract, and then implemented as contract performance unfolds.


Pump Procurement Prompts Protest – You Be the Judge

On March 15, 2015, PWGS issued a solicitation for multiple frigate pumps on behalf of the Department of National Defence, with a closing date of May 15, 2015. Springcrest Inc. submitted its bid by the deadline and was informed in August that the bid was responsive, but that PWGS had decided to cancel the solicitation and re-issue it with modifications.

On May 17, 2016, PWGS again issued a solicitation on behalf of the DND for the pumps, and included a modification requiring that the pumps be shock tested prior to bid submissions. The original deadline was set for June 27, but was eventually amended to September 30, 2016. On May 26, Springcrest submitted an objection to PWGS asking that the modified requirement be removed, since it was impossible for any manufacturer to meet that requirement. Upon the next extension of the deadline, that requirement was not removed.

In July, Springcrest then asked PWGS if the original equipment manufacturer (“OEM”) was also required to provide certification of shock testing on its pumps. Four days later, the PWGS issued an amendment to the solicitation stating that if the OEM offered a motor different from the original pump, then the OEM must provide shock testing certification; if the motor was the same, the OEM did not have to meet this requirement.

On that same day, Springcrest made a formal complaint to the CITT on two issues: (1) the terms of the RFP were biased in favour of the original equipment manufacturer; and (2) the timing of events in the solicitation process made it impossible for suppliers of equivalent products to meet the process’ requirements. Specifically, there was insufficient time given to bidders to obtain a shock testing certification, meaning that only OEM suppliers with prior certification could apply. Springcrest further submitted that standard industry practice is to perform a shock test on the first pump a manufacturer produces, meaning that it would take a manufacturer approximately a year to be in a position to provide this certificate. When Springcrest filed its complaint, there were only 62 days between bid issuance and the deadline.

Springcrest further argued that if OEM suppliers were not required to provide shock testing certification, the terms of the solicitation were discriminatory as they precluded, in effect, non-OEM suppliers from bidding. The requirement, according to Springcrest, was also contrary to industry standard and previous DND practice: generally, shock testing is done after contracts are awarded rather than before a bid deadline date. Springcrest also submitted that no pumps were currently available that could meet the specification, as the manufacturer of the motors used in the original pump assemblies was no longer in business, and that no company currently owns the rights to make them.

PWGS submitted that requiring shock testing certification at bid closing was not discriminatory because it was part of the government’s legitimate operation. Further, the pumps were urgently needed by the DND in order to service the Halifax class frigates of the Royal Canadian Navy, which does not currently have sufficient working spare pumps in order to fill their demand. Thus the certification was required in order to procure pumps without further delay, as allowing bidders to get the certification after would delay the Navy getting the pumps by several months. PWGS also submitted that generally governments do require this certification at bid closing, despite what Springcrest had submitted. PWGS did submit evidence agreeing with Springcrest’s assertion that it could take a company a year to get shock testing certification.

This agreement was governed by the Agreement on Internal Trade (AIT) and by the Canadian International Trade Tribunal Procurement Inquiry Regulations (Regulations). The Tribunal also consulted Article 1007 of NAFTA and Article X of the AGP, which provide that technical specifications should not be drafted in certain prescribed ways that favour a particular supplier or suppliers. Do you think Springcrest’s complaints are valid? If yes, what remedy would you grant, with reference to subsection 30.15(3) of the CITT Act?


In Springcrest Inc v Department of PWGSC PR-2016-021 the CITT ruled the complaint was valid, recommended that the DPWGS cancel the existing solicitation and issue a new one, and awarded Springcrest its costs.

First, the Tribunal considered whether Springcrest’s assertion that the amended solicitation was discriminatory, and accepted that the DND had legitimate operational requirements leading to them seeking the pumps without further delay, such as that caused by shock testing certification. Moreover, Springcrest’s evidence did not indicate that PWGS deliberately sought to be discriminatory in excluding suppliers of equivalent products, or of favouring the OEM supplier. Rather, the evidence suggests this was inadvertent. Thus the CITT ruled that this ground of complaint was invalid.

The Tribunal next considered Springcrest’s second complaint, which was that the timing of the events in the process made it impossible for non–OEM suppliers to meet the amended bid’s requirements. Both parties agreed that it could take up to a year to manufacture pumps and have them be shock tested. Thus the CITT found that the timing did have the effect of discriminating against non–OEM manufacturers and that PWGS should have allowed for more time, in the interests of fair competition. Accordingly, this ground of complaint was found to be valid.

Springcrest requested a remedy either of amending the solicitation to remove the shock testing certification requirement, or of re-issuing the solicitation without that requirement. Since the bid period had closed by the time of the CITT ruling, Springcrest’s first suggestion for a remedy was not feasible. The CITT thus ruled that PWGS must cancel the existing solicitation and issue a new one which either removes the contested requirement or allow suppliers sufficient time to provide shock testing certificates before bid closing. Springcrest was also awarded its costs.

Readers are cautioned not to rely upon this article as legal advice nor as an exhaustive discussion of the topic or case. For any particular legal problem, seek advice directly from your lawyer or in-house counsel. All dates, contact information and website addresses were current at the time of original publication.

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