Facilitate

What We Did to De-escalate Disputes and Help Resolve Issues

Suppliers contacting the Office with an issue are encouraged to provide the department they are dealing with the opportunity to address it before requesting our involvement. In situations where the supplier has been unsuccessful or is dissatisfied with its interactions with the department, or expresses a reluctance to contact the department, the Office tries to assist by playing an intermediary role. Often, this involves obtaining an understanding of the supplier's issue and contacting the department to outline and discuss it with them. Once we have obtained the department's perspective the information is relayed back to the supplier. In the majority of cases, this simple "go between" process alleviates the issue.

What has become apparent in playing this "go between" role is that often it isn't necessarily the information we provide as much as hearing it from an independent source; a source that has no vested interest in the issues being raised. In other cases, perhaps due to the complexity of the issue, playing the "go between" role is not enough. In these cases we either attempt to stimulate dialogue between the supplier and the department by encouraging them to speak to each other or by working with the department and supplier to find an acceptable, informal solution to the matter.

Of the 194 contacts, 146 (75%) were either dealt with informally (i.e., through our "go between" role) or could not be pursued for regulatory reasons. The 48 (25%) remaining cases, all of which were written complaints, are dealt with in the next section of the report, entitled: Investigate.

Examples of our success in helping to resolve issues through our facilitation role include the following:

The solicitation is on its way. But when?

A supplier, whose contract had expired several months earlier, was looking for the renewal he was told would be solicited shortly. "Shortly" turned into months. The supplier contacted the Office frustrated with what he perceived as a lack of accountability and caring on the part of the department. With the supplier's consent, OPO contacted the department who informed us the renewal in question was still moving forward despite unforeseeable delays, and that the supplier would be advised when he could begin looking for the solicitation on the Government of Canada's electronic tendering website: buyandsell.gc.ca.

Even limited tendering has to be slightly unlimited

A supplier had not been included in a list of invited suppliers for a solicitation. The supplier realized he could fulfill the requirement and approached the department to ask for a copy of the solicitation so as to submit a proposal. The department informed him he could not be included in the process as he had not been on the initial list of invitees. Unsure of the validity of the department's explanation, the supplier called the Office. Working with the department it became clear that a list of invited suppliers should not be exclusive and the supplier was included in the competitive process.

Where have all the solicitations gone?

A supplier contacted OPO concerned a monopoly might exist in a requirement category where a Request for Proposal (RFP) had not been issued in more than 20 years. OPO conducted a search of the Government's buyandsell.gc.ca website and identified several posted solicitations for the specific requirement as well as a record of a recently awarded contract. This information was relayed to the supplier which not only dispelled the monopoly myth but also informed him of where to locate government solicitations.

But I thought you meant…

Upon being informed his proposal was not successful, a supplier requested clarification from the department. Frustrated by the department's refusal to provide information, the supplier contacted the Office. After a discussion with OPO, the department realized there had been an error in the evaluation and the supplier had in fact been correct in raising its concerns. The department also realized the error had been consistently applied to all proposals it had evaluated as the criterion in question was vague and open to interpretation. While the outcome in awarding the contract did not change, the department committed to ensuring future criteria would be clearer.

Why isn't that in the Statement of Work?

A supplier provided services under the contract, as required. However, the outcome was not what the department expected and payment was withheld. Concerned, the supplier contacted the Office. After a discussion with OPO, the department realized that while the outcome of the contract was not what it had expected, the supplier had nevertheless completed the work as stipulated in the statement of work. The department agreed to pay the supplier in full.

Many of the cases brought to our attention are dealt with through this type of "go between" process. There are other cases where the parties to a contract are in disagreement and no longer communicating with one another, or if they are, communicating acrimoniously. In these cases a dispute has occurred that requires a more formal approach to help resolve it.

"… we were a bit hesitant going into [OPO's Alternative Dispute Resolution process] with very little to offer. In the end, the mediation session proved helpful to us… it ultimately meant less work for [us] and a better overall understanding between the parties of our respective needs and concerns. It is certainly helpful that the OPO offers this service and no doubt helps save money (and effort) when it can result in avoiding costly litigation. Thank you for your assistance in this matter."
— Departmental lawyer

Helping Parties to a Contract Resolve Disputes

When disputes arise during the performance of a contract, they can have immediate negative consequences that can distract suppliers and government officials from what their focus should be: the completion of the contract on time and within budget. In cases where there is a dispute over the interpretation of terms and conditions of an existing contract, either party to the contract can request OPO's Alternative Dispute Resolution (ADR) service. The service is voluntary, confidential, free of charge and provides a viable alternative to lengthy and expensive litigation. The mediation service offered by the Office provides both parties the opportunity to generate a mutually agreed upon and legally binding settlement to resolve a dispute quickly and efficiently.

Consistent with past years, the Office continues to experience success in helping disputing parties who participate in the service. The reality, however, is that the service remains largely underutilized and the volume of requests continues to be low.

This year we received three requests for ADR, of which:

• one supplier request was declined by the department;
• one supplier request was withdrawn after an informal resolution was reached with the department; and
• one ADR process was successfully completed.

With regard to the successfully completed case, the Office received a request from a supplier concerned with a department's termination of the contract "for convenience". The supplier did not understand the reason for the termination and wanted information from the department as well as assurance that, despite this termination, they could do business with the department in the future. While the department felt it had "little to offer" in terms of information and assurances, in the spirit of transparency it agreed to participate in a mediation session. The session proved fruitful in allowing both parties to share their perspectives. It also resulted in a mutually acceptable agreement.

Date modified:

2018-11-01