Position Paper: Procurement Ombudsman Access to Documents and Information

Introduction

This paper explores what documents and information are necessary in order for the Procurement Ombudsman (PO) to undertake a review of a complaint on the award of a contract in accordance with the requirements of the Public Works and Government Services Act (the Act) and the Procurement Ombudsman Regulations (the Regulations).

Background

Among its legislated mandate, the Office of the Procurement Ombudsman (OPO) reviews complaints from suppliers regarding the awards of certain contracts by departments or agencies. A decision by the PO to review a complaint is based on documents provided by the complainant. The written complaint, together with any associated documents provided by the complainant, is assessed against the relevant provisions of the Regulations to determine if it falls within the regulatory parameters that govern the Office's complaint review activities. This exercise is essentially a reconciliation of the complaint details against the various elements of the relevant section(s) of the Regulations. The determination of whether the complaint falls within the PO mandate to review must be made within ten working days of the complaint being filed.

Once a determination is made, the PO is bound by the Regulations to inform both the complainant and the implicated department of the determination. The Regulations also require that, at the same time, the complaint and associated documents be provided to the department. The purpose is to notify the department of the complaint and, if the determination is made to review the complaint, obtain, as part of due process, the department’s perspective and comments on the complaint.

In cases where the determination is to conduct a review, the OPO has, subject to the nature of the complaint, requested from the department documents and information relating to the award of the contract which is the subject of the complaint, including available records associated with the:

  • “contracting file” which typically contain records pertaining to the department or agency’s contracting process (for example, approved requisitions, solicitation documents, questions and answers during the solicitation period, all bids received, evaluation reports, contract…etc…); and,
  • “program file” which typically contains records related to determining the procurement strategy, drafting of statements of work or other technical aspects of the procurement.

In addition, OPO has requested the guidance documents (e.g. policies, directives, procedures, etc.) used by the department to conduct the procurement process in question.

Issue being examined

The question that has been raised and which is the subject of this paper is, when undertaking a review (as opposed to when making the determination of whether or not to conduct a review) should the OPO assess the merits of a complaint in accordance with the requirements of the Act and the Regulations using the:

  • documents and information provided by the complainant and the documents and information deemed by the department; or
  • documents and information provided by the complainant and the documents and information deemed by the department, as well as other documents and information deemed relevant by OPO related to any part of the entire procurement process for the award of the contract in question.

Mandate to review supplier complaints

For the purposes of this paper the pertinent section of the Act from which the PO derives the authority to review supplier complaints is Section 22.1 (3) (b):

  • review any complaint respecting the compliance with any regulations made under the Financial Administration Act of the award of a contract for the acquisition of materiel or services by a department to which the Agreement, as defined in section 2 of the Agreement on Internal Trade Implementation Act, would apply if the value of the contract were not less than the amount referred to in article 502 of that Agreement;

Section 12 (1) of the Regulations outlines factors to be taken into consideration when conducting the review of the award of a contract.

To facilitate the conduct of the review, Section 9 (2) of the Regulations permits the PO to request departments and agencies and the complainant provide the documents and information necessary for the review:

  • 9. (2) If the Procurement Ombudsman reviews the complaint under subsection (1), he or she may request that the complainant or the contracting department provide any document or information necessary for the review.

Accordingly, this paper is focused on the documents and information required to review a complaint in accordance with the requirements of the aforementioned Act and the Regulations.

Part 1: The Case for Access to Documents and Information

Definitions

While both the Act and the Regulations utilize the terms “review” and “ombudsman” neither term is defined. Accordingly, for the purposes of this paper the common definitions of the terms will be used.

  • “Review” - Black’s Law Dictionary defines the term “review” as “1. Consideration, inspection or reexamination of a subject or thing”.
  • “Ombudsman” - The International Ombudsman Institute defines the role of an ombudsman as “to protect the people against violation of rights, abuse of powers, error, negligence, unfair decisions and maladministration and to improve public administration while making the government's actions more open and its administration more accountable to the public”.

Analysis

The purpose of a review conducted as per section 22.1 (3) (b) of the Act is to assess the compliance of the award of a contract against “any regulations” under the Financial Administration Act. Neither the Act nor the Regulations limit this review to a part of the procurement process or to examining only the facts and grounds on which the complaint is based. Rather the Regulations require the PO, when conducting a review of a complaint respecting the award of a contract, to take certain factors into consideration. Specifically, section 12(1) of the Regulations outlines the minimum factors to be taken into account:

“For the purpose of his or her review, the Procurement Ombudsman shall take into consideration any relevant factors, including the following:

  1. whether the complainant would have had a reasonable prospect of being awarded the contract, but for the actions of the contracting department;
  2. the seriousness of any deficiency in complying with the regulations made under the Financial Administration Act;
  3. the failure or refusal of the complainant to provide information about its goods and services at the request of the contracting department;
  4. the degree to which the complainant was prejudiced;
  5. the degree to which the fairness, openness or transparency of the procurement process was prejudiced; and
  6. whether any of the parties acted in bad faith.”

In order to be able to take at least these factors into account on any consideration, inspection or reexamination of the award of a contract, any reviewer requires the documents and information associated with the procurement process, which, as defined by the Agreement on International Trade “begins after an entity has decided on its procurement requirements and continues through the contract award”. The OPO review methodology is therefore designed to examine whether the procurement process utilized by the department complies with regulations. Accordingly, the OPO methodology in conducting the review of a complaint about the award of a contract explores the Section 12(1) factors as follows:

  • An assessment of the “reasonable prospect” of the complainant being awarded the contested contract may involve the examination of the likelihood of the complainant’s bid succeeding as the winning bid; success both on the merits of the bid itself and from amongst all competing bidders.

    Developing a retrospective view of whether or not the actions of the department in some form or fashion impeded the likelihood of the complainant being awarded the contract, impeded the complainant’s ability to submit a bid, or, whether the actions advertently or inadvertently advanced the bid of a competitor(s) requires that a complete and thorough examination of the events, proceedings and measures from the time a need has been identified to the award of the contract be undertaken.

  • Any assessment of the “seriousness of any deficiency” must first begin with a determination of whether or not a deficiency exists, and, if so, what the deficiency is, and its seriousness in the context of the procurement process. Since a deficiency can occur at any stage in the procurement process, a determination of whether or not there is a deficiency and its seriousness requires that OPO examine all aspects of the procurement process, which begins after an entity has decided on its procurement requirement (typically established by the project authority/program manager) and continues through the contract award (typically conducted by the contract authority)
  • We would expect any evidence of the “failure or refusal of the complainant to provide information about its goods and services at the request of the contracting department” to be found in the department’s files and would not expect the complainant to provide that evidence as a part of their complaint or otherwise.
  • In assessing the “degree to which the complainant was prejudiced” the review must examine whether the complainant was able to bid and, if so, the treatment of the complainant’s bid and the treatment of the complainant’s bid relative to the treatment of the other bids considered by the department. The review must first establish whether the complainant’s bid was in fact prejudiced in some form or fashion either directly or indirectly by, for example, favouring a competitor’s bid and, if this was the case, assessing the severity. This requires that OPO examine all aspects of the procurement process, which begins after an entity has decided on its procurement requirement (typically established by the project authority/program manager) and continues through the contract award (typically conducted by the contract authority).
  • In assessing the degree to which “the fairness, openness or transparency of the procurement process was prejudiced, the OPO uses the TBS draft definitions for “fairness”, “openness” and “transparency”. Accordingly, reviews seek to determine if the procurement process related to the award of the contract:
    • was conducted in such a way so as to give equal treatment to the complainant and all suppliers (fairness);
    • provided opportunity to the complainant and other suppliers to submit their bids (openness);
    • is supported by the rationale for the decisions made, and provided the same information to the complainant as well as other bidders in a timely manner (transparency).

    and, if not, how severely these principles, individually and collectively, may have been impaired (prejudiced). This requires that OPO examine all aspects of the procurement process, which begins after an entity has decided on its procurement requirement (typically conducted by the project authority/program manager) and continues through the contract award (typically conducted by the contract authority).

  • An assessment of whether in either the development or execution of the procurement process there was some intention to deceive requires that OPO examine all aspects of the procurement process which begins after an entity has decided on its procurement requirement (typically established by the project authority/program manager) and continues through the contract award (typically conducted by the contract authority).

While experience has demonstrated that each complaint is unique and requires the review to focus on different facets of the procurement process, reviews conducted in accordance with the Act and Regulations must at a minimum examine all of the aforementioned factors.

Accordingly, the program file is necessary as it should contain documents and information which demonstrate how the project authority arrived at key decisions such as how the contents of the statement of work were determined, how/why the procurement strategy recommended or utilized for the procurement was chosen, and the bid evaluation criteria development

Likewise, the contract file is necessary as it should contain documents and information such as how the procurement strategy was selected, how the procurement tool was selected and applied, the individual bid evaluation results, and how the selection was made amongst the competing bidders.

Accordingly, in order for the review of a complaint to consider these regulatory factors, access to documents and information normally contained in both the program and contract files is required.

Part 2: CITT Review Process versus PO Review Process

It has been suggested that, since the Regulations were modeled on the CITT regulations, the OPO complaint review process should essentially emulate that of the CITT. This section briefly delineates the primary differences in the two organizational processes and how the OPO complaint review process differs from that of the CITT.

The Core Differences

  1. The CITT is a court of record with the power to subpoena witnesses to give evidence and the power to require documents to be produced. The OPO is not a court of record, has no power to subpoena witnesses to give evidence and no power to require documents to be produced.
  2. The CITT has elaborate rules respecting the request for and production of documents. The PO may request any documents and information required for the review.
  3. The CITT can make its determination based only on the documents or can require an oral hearing at which witnesses can be examined and cross examined to test the truth. There is no provision authorizing the PO to conduct oral hearings to make his/her determinations.
  4. The CITT inquiry is, by regulation, limited to the subject matter of the complaint. The PO inquiry is, by regulation, to consider all of the factors listed in Section 12(1) of the PO Regulations.
  5. Although both the CITT and the PO can only make recommendations, in the case of the CITT, as a tribunal, the implicated government institution is required to implement the CITT recommendations to the greatest extent possible.

The Path to Making Findings and Recommendations

The CITT, being a tribunal, conducts inquiries and makes determinations. The CITT’s process is adversarial with strict rules of evidence/procedure with the complainant normally having the burden of proof to prove its case on a balance of probabilities. In an adversarial process, each of the parties to the dispute acts in its own self-interest as the main questioner ensuring the proper questions are asked to advance their case or disprove their opponent’s case, and each has a duty to ensure that all relevant documents and information are put before the Tribunal.

Consistent with the International Ombudsman Association defined role of an ombudsman, the nature of the ombudsman requires that reviews be conducted using an inquisitorial (as opposed to an adversarial) process. Under an inquisitorial process there are no strict rules of evidence and procedure and neither party to the complaint has a burden of proof. As such, an inquisitorial process revolves around a decision maker (the ombudsman) who animates the review process by:

  • being involved in the review,
  • being proactive in seeking the truth whoever that favors,
  • acting as the main questioner ensuring the proper questions are asked,
  • having a duty to ensure that all relevant documents and information are acquired,
  • having a duty to satisfy himself/herself on the findings,
  • acting in a neutral manner and collecting documents and information that is relevant to all parties,
  • being scrupulous about documents and information.

Given the Regulations are silent on the process to follow for conducting a review, the OPO has implemented a process that respects the principles outlined above so as to maintain an inquisitorial approach to conducting reviews consistent with the role of an Ombudsman.

As outlined in the previous Part, conducting such reviews requires the assessment of all documents and information necessary to make the required determinations, including, when reviewing the award of a contract, the factors listed in Section 12(1) of the Regulations.

Section 9(2) authorizes the PO request any documents or information “necessary for the review”. Unlike the CITT which operates on an adversarial basis where the parties play an active role and each is responsible for ensuring that the documents and information favorable to their case are put before the Tribunal, there is no role specified in the Regulations for the Department in determining what documents or information are “necessary for the review”. Nor are there any restrictions or qualifications on the PO’s right to request documents or information the PO believes are necessary for the review .

Part 3:  What is the Standard for Interpretation?

It has been suggested that a department should only be required to submit documents and information the department believes are relevant to a complaint based on its own “objective standard” rather than documents which are determined by the PO to be necessary to carry out a review of a complaint in accordance with the requirements of the Act and the Regulations.

In its 2011 decision of Alberta (information and privacy Commissioner) v. Alberta teachers’ Association, the Supreme Court of Canada, quoting Dunsmuir held that “there is authority that ‘deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have a particular familiarity’.

In discussing the application of the two standards (reasonableness and correctness) in a judicial review of an administrative action, the Court said;

  • It would not preclude judicial review on a reasonableness standard when interpretation of the home statute of the tribunal is at issue. Nor would eliminate correctness review of decisions of tribunals interpreting their home statute where the issue is a constitutional question, a question of law that is of central importance to the legal system as a whole and that is outside the adjudicator’s expertise, or a question regarding the jurisdictional lines between competing specialized tribunals.... if the issue before the reviewing court relates to the interpretation and application of a tribunal’s ‘home statute’ and related statutes that are also within the core function and expertise of the decision maker, and the issue does not raise matters of legal importance beyond administrative aspects of the statutory scheme under review, the Court should afford a measure of deference under the standard of reasonableness”

The Supreme Court of Canada later summarized this as follows:

  • In other words, since Dunsmuir, for the correctness standard to apply, the question has to not only be one of central importance to the legal system but also outside the adjudicator’s specialized area of expertise.

Since the question of what documents and information are required for a review of the award of a contract taking into consideration those matters the PO is required by Section 12(1) of the Regulations is clearly within the PO’s area of expertise, does not raise matters of legal importance beyond administrative aspects of the statutory scheme, is not a constitutional question, is not a question of law that is of central importance to the legal system as a whole, and is not a question regarding the jurisdictional lines between competing specialized tribunals, the referenced Supreme Court of Canada decision supports the position that a measure of deference should be afforded to the PO’s interpretation of Section 9(2) of the Regulations (i.e. the home statute of the PO) under the standard of reasonableness.

Conclusion

While guided by Section 12(1) of the Regulations, the determination of the scope of the review falls under the responsibility of the PO. Subject to the parameters provided by the Regulations, this determination is discretionary and central to the PO’s authority and mandate.

In making findings, the Regulations stipulate that the PO must take into consideration, at a minimum, the elements listed in Section 12(1) of the Regulations. To comply with this requirement all aspects of the procurement process which “begins after an entity has decided on its procurement requirements and continues through the contract award”. To accomplish this, the Regulations provide that the PO may request any document or information necessary for the review.
The rules of interpretation require that we give words their ordinary meaning within the context of the overall purpose of the legislation. The PO’s interpretation of Section 9(2) of the Regulations is that it is in the independent Ombudsman’s discretion, and his/her discretion alone, to determine what documents and information are necessary for the review of the award of a contract. This interpretation is more consistent with promoting the overall purpose of the legislation than the more restrictive interpretation that the department (a party to the procurement process being reviewed) should decide what documents and information are necessary for the review by the PO of the award of a contract made by that department.

Furthermore, the deference the Supreme Court of Canada held should be given to the PO in interpreting his/her home statute given that the question of what documents and information are necessary for the review is within the PO’s specialized area of expertise and the fact that the PO’s interpretation is reasonable supports the choice of the PO’s interpretation of its home statute.