Five years after repeal of the Public Tender Act, specific details of the operation of the Public Procurement Act (the "Act") remain a mystery to many. This is concerning given the Act's stated objectives of transparency and accountability. Debriefing is a key mechanism to meet these objectives but, based on client and industry interactions, it appears that debriefing is not being used effectively. Whether innocently or intentionally, failure to provide effective debriefing undermines the intentions of the legislation and, in the bigger picture, risks diminishing the public sector supply base to the detriment of the Province as a whole.
'Procurement' under the Act refers to the process for acquiring goods, services, public works and leases of space by public bodies, which are essentially government or government-funded entities. Best value is sought through open and fair competition between 'suppliers' (which in construction includes contractors). This can include traditional tenders but the competition is often more nuanced to reflect what is needed and promote best value: this can mean the lowest price for a fully-specified supply or a more flexible proposal to meet targeted needs and objectives. In either case, the competition separates successful from unsuccessful bids, and determines who provides the supply.
Debriefing is intended to support procurement by assisting both sides of the equation: the suppliers and the public body. The Act obliges the public body to comply with requests for debriefing; the process is set forth in the Public Procurement Regulations (the "Regulations") and explained in greater detail in the Provincial Procurement Policy (the "Policy") formally adopted by the Province.
The Act generally obliges public bodies to debrief any unsuccessful suppliers who make a request. The Regulations impose timelines based on notice of contract award and clarify that, in debriefing, the public body has to provide an overview of the supplier's bid and why it was unsuccessful. The Policy provides much greater detail on how debriefings are conducted but it appears that many public bodies are familiar with it, even when it is specifically referenced in their own procurement documents and notwithstanding that the Policy expressly states that:
"It is the responsibility of public bodies and their employees involved in procurement to ensure that the acquisition process is conducted in accordance with the Act, Regulations, this Policy and relevant trade agreements. All procurement is to be carried out by staff with the required knowledge, skills and expertise to work effectively within the framework."
The Policy is clear that debriefings are an integral part of a transparent and equitable procurement process which permits unsuccessful suppliers in an open call for bids an opportunity to understand why their bid was not successful. It directs that requests for debriefings received after the prescribed deadlines should be considered on a case-by-case basis, and notes that where they conflict, the Act (which does not impose deadlines) governs over the Regulations.
Public bodies are required to provide suppliers with relevant feedback based on evaluation criteria that balance confidentiality requirements owed to other suppliers. The objective is to give suppliers insight into the procurement and evaluation processes while obtaining specific feedback on their own submissions. Debriefing is also intended to provide assurance that all submissions are treated fairly and maintain a fair, ethical and transparent process. Specifically the debriefing is supposed to "demonstrate that each proposal was evaluated in accordance with the evaluation process and criteria" and "better prepare the supplier for future opportunities, which, in turn, strengthens the public sector supply base."
To accomplish this, the responsible official on the procurement is obliged to prepare and compile requisite materials and coordinate attendance of everyone necessary for an effective debriefing. A debriefing template issued by the Public Procurement Agency includes a checklist for documents like evaluation scoring sheets, and dedicated sections to summarize strengths and weaknesses and specific information for future improvements. Debriefing is expressly intended to be informative and not adversarial and the Policy directs that discussions should include: "strengths and weaknesses of the supplier's submission relative to the evaluation criteria"; the "supplier's evaluation score and supplier's evaluation ranking"; "areas where the terms, conditions or specifications were not met"; "suggestions on how to improve future submissions"; and "feedback from the supplier on any aspect of the procurement or the process." It should also address "specific questions and concerns raised by the supplier relative to their submission."
In addition to informing suppliers, debriefing is meant to assist public bodies to meet objectives like ensuring that they use an open, fair, consistent and transparent process that maximizes competition, adheres to the framework for procurement, and manages processes and practices consistently.
Based on anecdotal communications with individual suppliers and discussions within industry groups, the debriefing process does not appear to be working as contemplated. Reports from those in the industry are of a bare minimum observance, with public bodies allocating inadequate time and refusing to provide specific details of scores for rated criteria or explanation for how scores were assigned. Inquiries on how to improve future submissions can be met with outright refusals to respond and interpreted as a challenge to the authority of the procurement official involved that will colour how that supplier's proposals are evaluated in the future. Worse still, the uncooperative approach is often coupled with assertions of impunity: that the Act prohibits liability on the part of the public body or its employees and agents. While yet untested by the courts, the relevant section of the Act clearly states that it only applies where the public body or individual is acting in good faith. It is difficult to believe that anyone who disregards the framework of the Act, the Regulations and the Policy could be acting in good faith, especially when compliance is explicitly required.
The purpose of the Act is to establish a framework which, through its operation, enables public bodies to achieve best value, transparency and accountability in procurement. Suppliers may be reluctant to focus on unsuccessful bids, but by acting on their rights under the legislation, they can improve the procurement process and their own success within it. This can be particularly relevant where the competition is not for a specific project but to create a pre-qualified supplier list. The Regulations confirm that a supplier who did not initially meet the requirements of a request for qualifications may be added to a pre-qualified supplier list at any time if it now meets those requirements. It is in everyone's best interests if suppliers present their bids in a way that comprehensively responds to the public body's needs.
The legislative framework was designed to support efficient, effective and ethical procurement but depends on all stakeholders, and especially public bodies and suppliers that understand the relevant processes, to ensure that it operates successfully.
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