Special Initiatives

Formative Evaluation Action Plan: Mandate Assessment

A formative evaluation of the effectiveness of the Office in its first three years of operation was completed in the 2012–13 fiscal year. Based on supplier input, the evaluation recommended analysis be undertaken to assess the advantages and disadvantages of expanding the Ombudsman's mandate to include:

• the ability to review complaints about the award of a contract with higher dollar-value thresholds; and
• measures requiring departments to address the recommendations made by the Procurement Ombudsman.

The independent analysis concluded that no persuasive reason existed for changing the monetary thresholds that underpin the Procurement Ombudsman's mandate. It was noted the original policy rationale – that the Procurement Ombudsman fills a gap in the dispute resolution system for low dollar value contracts – remains compelling and that a modest increase in thresholds would also not likely have an impact on the number of complaints that meet the criteria for review by the Ombudsman.

The analysis of whether departments should be required to address the Ombudsman's recommendations concluded the current process works well, as most recommendations made by the Ombudsman are agreed to and action plans are developed and implemented by departments. The report concluded that requiring departments to address recommendations would be inconsistent with OPO's status as an ombudsman organization and with the powers of other federal oversight organizations.

Inclusion of OPO Clauses in Procurement Documents

In June 2013, the Minister of Public Works and Government Services wrote to her Cabinet colleagues seeking assistance in ensuring that suppliers dealing with their organizations were made aware of the services offered by the Procurement Ombudsman. To that end, the Minister encouraged her colleagues to work with their respective deputy heads to include information related to the Office of the Procurement Ombudsman in their organization's procurement documents, namely:

• solicitations for goods and services;
• resulting contracts; and
• regret letters to unsuccessful bidders.

To facilitate this process, the Minister stated that standard clauses available for inclusion in these documents would be provided to the deputy heads by the Procurement Ombudsman. Deputy heads have the delegated authority to purchase goods and services within certain financial thresholds. Commensurate with this authority is the full discretion to adjust procurement documents to meet the operational requirements of their organizations.

The Procurement Ombudsman provided the clauses to the deputy heads of organizations falling within his mandate (i.e. schedules I, I.1 and II of the Financial Administration Act) and requested responses on whether organizations would include the clauses in procurement documents. Follow-up with organizations that had not responded was done in December 2013.

In March 2014, the Procurement Ombudsman provided deputy heads the opportunity to confirm their respective organization's response to the Office.

The vast majority agreed to include the clauses with some organizations agreeing to include OPO information in regret letters and on the solicitation pages of websites.

Access to Documents and Information

The Issues

The following question was raised: When undertaking a review should OPO assess the merits of a complaint in accordance with the requirements of the Department of Public Works and Government Services Act (the Act) and the Regulations using the:

• documents and information provided by the complainant and the documents and information deemed relevant by the department?; OR
• documents and information provided by the complainant and the documents and information deemed relevant 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?

In addition, it was suggested that

• since the Regulations were modeled on the Canadian International Trade Tribunal (CITT) Regulations, the OPO complaint review process should essentially emulate that of the CITT; and
• 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 Procurement Ombudsman to be necessary to carry out a review of a complaint in accordance with the requirements of the Act and the Regulations.

Analysis

The Office conducted a detailed analysis of the issues raised. The analysis revealed the following.

1. On the question of what documents and information should be provided:

   Neither the Act nor the Regulations limit the 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 Procurement Ombudsman, when conducting a review of a complaint respecting the award of a contract, to take certain factors into consideration. Specifically, subsection 12(1) of the Regulations outlines the minimum factors to be taken into account including the following:

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

   The OPO methodology in conducting the review of a complaint respecting the award of a contract explores these factors.

2. On the suggestion that the OPO review process should emulate that of the CITT:

   Consistent with the International Ombudsman Association defined role of an ombudsman, the nature of an ombudsman requires that reviews be conducted using an inquisitorial 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. Given the Regulations are silent on the process to follow for conducting a review, OPO has implemented a process that respects an inquisitorial approach to conducting reviews consistent with the role of an ombudsman.

   Subsection 9(2) of the Regulations authorizes the Procurement Ombudsman to request any documents or information "necessary for the review". There is no role specified in the Regulations for a department in determining what documents or information are "necessary for the review". Nor are there any restrictions or qualifications on the Procurement Ombudsman's right to request documents or information the Procurement Ombudsman believes are necessary for the review.

3. On the suggestion that a department should only be required to submit documents and information the department believes are relevant:

   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'".

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

Conclusion

To comply with the requirement to consider elements listed in subsection 12(1) of the Regulations, all aspects of the procurement process which "begins after an entity has decided on its procurement requirements and continues through the contract award" must be considered. To accomplish this, the Regulations provide that the Procurement Ombudsman 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 Procurement Ombudsman's interpretation of subsection 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 Procurement Ombudsman of the award of a contract made by that department.

Furthermore, based on the Supreme Court of Canada decision, deference should be given to the Procurement Ombudsman in interpreting his/her own statute.

Date modified:

2018-11-01