Conservatives should halt procurement reform initiated by Liberals: lawyer

The federal Conservative government, in its recently-tabled omnibus Accountability Act, is proposing a series of new measures to ensure that the $16-billion to $18-billion it spends on government procurement annually is "fair, open and transparent."But one critic has emerged to say that the Conservatives should put a halt another procurement policy reform under way in the senior ranks of the bureaucracy, initiated by the former Liberal government.The government says it spends billions every year on procurement of goods and services, including everything from military supplies to telephone and internet services. The troubled Public Works Department, where senior bureaucrats ran the scandal-dogged Liberal sponsorship program, is trying to recover from a wasteful reputation, and the Conservatives promise to clean up the department.The government's proposed Federal Accountability Act proposes to create a new "procurement auditor" in the department to review additional procurement complaints, study the government's procurement practices and make recommendations for improvement."That person's job, every day, will be to make sure that he or she makes recommendations for improvement," Public Works Minister Michael Fortier, who is also a Quebec Senator, told reporters in a conference call last week. He said the government intends to fill the position once the accountability bill is passed. "So this person will sort of be imbedded within Public Works to help suppliers who contract with the federal government of Canada, to make sure that the rules are simpler and userfriendly," he said.The Conservative government also intends to strengthen what it calls "integrity provisions" in government contracts, so that if any company is found to have used collusion, fraud, bribery, or "success" fees for lobbyists in the bidding process for contracts, the government has the right to cancel them.But Paul Lalonde, a lawyer who specializes in procurement at the law firm Heenan Blaikie, criticized the Public Works Department's attempt to move ahead with a policy adopted by the former Liberal government, which he said runs contrary to the Conservative approach for a fairer process."What I'm more concerned about is stuff that's been floating around for a couple months at Public Works, in terms of making some changes in the way that the Canadian International Trade Tribunal operates," Mr. Lalonde told The Hill Times in an interview last week. "There has been a lot of noise and even some presentations by Public Works about tabling some changes to the CITT's enabling legislation, that would claw back a little bit of the power of the tribunal to review procurement."The CITT is a quasi-judicial tribunal that reviews complaints from potential suppliers for the government's procurement process. It rules on whether procurement decisions were made fairly and in accordance with various rules.Mr. Lalonde said the Public Works Department is working on draft regulations that would limit the powers of the CITT to review procurement decisions, and that the work appears to be the result of a Liberal government review of procurement, which issued a report in January 2005.The review, headed by former Liberal MP Walt Lastewka, then Parliamentary secretary to the Liberal minister of Public Works, recommended a more corporate approach to government procurement, which was said to save the government billions of dollars per year.The report said that some of the CITT's review rules on procurement led to unnecessary challenges and "competition for competition sake," and that, instead of interpreting the rules on a standard of "correctness," the CITT should interpret them on a standard of "reasonableness."The federal Conservative government, in its recently-tabled omnibus Accountability Act, is proposing a series of new measures to ensure that the $16-billion to $18-billion it spends on government procurement annually is "fair, open and transparent."But one critic has emerged to say that the Conservatives should put a halt another procurement policy reform under way in the senior ranks of the bureaucracy, initiated by the former Liberal government.The government says it spends billions every year on procurement of goods and services, including everything from military supplies to telephone and internet services. The troubled Public Works Department, where senior bureaucrats ran the scandal-dogged Liberal sponsorship program, is trying to recover from a wasteful reputation, and the Conservatives promise to clean up the department.The government's proposed Federal Accountability Act proposes to create a new "procurement auditor" in the department to review additional procurement complaints, study the government's procurement practices and make recommendations for improvement."That person's job, every day, will be to make sure that he or she makes recommendations for improvement," Public Works Minister Michael Fortier, who is also a Quebec Senator, told reporters in a conference call last week. He said the government intends to fill the position once the accountability bill is passed. "So this person will sort of be imbedded within Public Works to help suppliers who contract with the federal government of Canada, to make sure that the rules are simpler and userfriendly," he said.The Conservative government also intends to strengthen what it calls "integrity provisions" in government contracts, so that if any company is found to have used collusion, fraud, bribery, or "success" fees for lobbyists in the bidding process for contracts, the government has the right to cancel them.But Paul Lalonde, a lawyer who specializes in procurement at the law firm Heenan Blaikie, criticized the Public Works Department's attempt to move ahead with a policy adopted by the former Liberal government, which he said runs contrary to the Conservative approach for a fairer process."What I'm more concerned about is stuff that's been floating around for a couple months at Public Works, in terms of making some changes in the way that the Canadian International Trade Tribunal operates," Mr. Lalonde told The Hill Times in an interview last week. "There has been a lot of noise and even some presentations by Public Works about tabling some changes to the CITT's enabling legislation, that would claw back a little bit of the power of the tribunal to review procurement."The CITT is a quasi-judicial tribunal that reviews complaints from potential suppliers for the government's procurement process. It rules on whether procurement decisions were made fairly and in accordance with various rules.Mr. Lalonde said the Public Works Department is working on draft regulations that would limit the powers of the CITT to review procurement decisions, and that the work appears to be the result of a Liberal government review of procurement, which issued a report in January 2005.The review, headed by former Liberal MP Walt Lastewka, then Parliamentary secretary to the Liberal minister of Public Works, recommended a more corporate approach to government procurement, which was said to save the government billions of dollars per year.The report said that some of the CITT's review rules on procurement led to unnecessary challenges and "competition for competition sake," and that, instead of interpreting the rules on a standard of "correctness," the CITT should interpret them on a standard of "reasonableness."Mr. Lalonde, considered an expert lawyer in procurement and who tends to represent private companies' dealings with the federal government, said the Public Works Department was awaiting final regulations from the Justice Department that would water down the role of the CITT by giving it more flexibility to rule against procurement complainants. Mr. Lalonde is also a Liberal, son of former Trudeau Cabinet minister Marc Lalonde, and is working on Liberal MP Michael Ignatieff's (Etobicoke-Lakeshore, Ont.) leadership campaign."They want to make it so that the tribunal can say, yeah, this wasn't done correctly, but close enough," Mr. Lalonde said."That's contrary to the whole spirit of the trade agreements and of opening it up and providing a fair, objective review mechanism."Mr. Lalonde said the CITT reforms conflict with the Conservatives "fair" approach, and suggested that the regulatory reforms of the CITT are being pushed by those within the Public Works Department."That seems to me, at least in terms of what this government alleges it wants to do, is completely contradictory," Mr. Lalonde said of the proposed reforms to the CITT. He added that in the fiscal year of 2004-05, about 65 complaints were filed with the CITT, and only five of those were found valid."Out of the gajillions of procurement situations the federal government does, in five instances the tribunal found complaints to be valid. And they want to water this down?" Mr. Lalonde said. "Either the federal government is doing procurement far better than anybody close to it believes, or the review power of the tribunal is very limited."He said there is also a move within the government to change how the CITT assesses costs for its review of complaints, which would allow the CITT to apply more costs to procurement complainants."If you change the cost system, so that losing complainants will get dinged even more, you create an additional chill against complaining," Mr. Lalonde said.However, R.J. Kelly, director of procurement policy at the Treasury Board from 1980 to 2000, and who was on Mr. Lastewka's Liberal task force on procurement, said the reforms of the CITT do not conflict with the Conservative approach. He acknowledged that the final report of the task force recommended that the government make regulatory and policy changes toward a more corporate approach to procurement, and said that a "very rough draft" of regulations had been prepared by the Justice Department, but they did not come from Public Works because the finance minister is responsible for CITT regulations.Mr. Kelly said that the reforms recommended in the task force's final report are helpful cost-saving measures, and that senior public servants are likely to push Conservative Finance Minister Jim Flaherty (Whitby-Oshawa, Ont.) for the regulatory changes."My god, they take a strict interpretation all the time, to the detriment of the public service and to the government, and it's costing us all kinds of money," Mr. Kelly said of the CITT. "We were softly saying that maybe somebody should look at the CITT, and the rules are too strict ... Some of the decisions are totally unreasonable."