Building Awareness of the Business Case- Is it a Rule Problem or is it Something else?

A Bennett Jones PresentationToronto, Ontario

Lisa Abe-Oldenburg, PartnerBennett Jones LLPSeptember 29, 2012

The Vendor Perspective

• Procurement approaches• Frustrations and challenges• Vendor improvements required• Key Recommendations

Procurement Approaches

• Rules appear too complicated to foster innovation, but bottom line is they have always been part of common law – codification of conduct for public sector:• Level playing field, open – equal access• Non-discrimination• No conflict of interest• Fairness• Transparency and accountability• Value for money, audits, are you getting what you contracted for

Procurement Approaches

• Must understand all the procurement tools available• The regulations don't prevent use of RFIs, RFQs, Single

and Sole Sourcing• Start with research – graduated process to determine

own needs and understand the market• Know performance results and outcomes• It is not just about final contract terms• Parties are able to negotiate contract terms that meet

their business purposes

Frustrations and challenges

• Common mistakes and pitfalls• Poorly drafted, vague RFP before they know what they want; no

specs• Ill-defined business case• Failure to use consultants to scope out design and requirements• Don't have enough time to run RFP process• Don't fully understand all procurement tools available, e.g. RFI,

RFQ, Single or Sole Sourcing – which procurement instruments to use and when

• Don't focus on total lifecycle and business purposes• Unproven technology, innovation without flexible review, change• Often don't have same sophistication in CIO and business

leadership as private corporations – Boards of volunteers, lack of project management

• No legal representation, deficient contracts

Frustrations and challenges

• Customer's strong contract terms and lack of flexibility• IP ownership• Unreasonable representations, warranties, indemnities, SLAs• Privacy and cloud use concerns

• Risk and liability for personal health info• Inspection and audit requirements

• Data storage requirements – location and segregation, cleansing

Vendor improvements required• Get to know the healthcare business sector, due diligence,

complexities of systems, stakeholders• Duty of care and professionalism standards• Must take some responsibility for personal information and

breach of privacy and security, especially when providing SaaS with control over infrastructure

• Must take responsibility for overall performance, contingency planning (disaster recovery), service levels, results and outcomes

• Innovation, improvement, competitive benchmarking• Must follow both Federal Freedom of Information and

Protection of Privacy Act (FIPPA) and Ontario Personal Health Information and Protection of Privacy Act (PHIPPA) – FOI requests, access

• Must comply with Accessibility legislation• Inspection and audit requirements

Key Recommendations and Best Practices

• Rules aren't the problem• Need improved contracting practices

• Establish internal controls and project management• Plan before purchasing: business case, needs analysis,

diagrams, flowcharts, requirements• Fully define criteria, specs (operational, functional, technical),

results & outcomes (e.g. end results, efficiencies, patient experience), blueprint

• Canvass the market• Obtain guidance, best practices and legal review before

issuing competitive tendering documents• Use advisors and consultants early to properly assess

needs and scope, infrastructure interoperability and integration

Key Recommendations and Best Practices

• Graduated implementation, flexible, plan for change management

• Developmental testing, acceptance testing, post acceptance performance verification, service level analysis

• Contractual remedies that practically address outcomes and performance, not just financial damages, e.g. robust repair and replace remedies

• Transitioning away from failing technology• Risk mitigation strategies• Technology currency and ongoing refreshment

obligations, right to future innovation at best prices• Participation in vendor's R&D programs• Internal dispute escalation and resolution

Lisa Abe-OldenburgPartner, Toronto

Telephone: 416.777.7475Email: abe-oldenburgL@bennettjones.com