procurement: fundamentals to forward thinking
TRANSCRIPT
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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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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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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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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
• 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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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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CONTACT US
Stephanie PearcePartner
613-783-8842
Phuong T.V. NgoPartner
613-786-0236
Graham RaganPartner
613-786-8699
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