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inn ONTARIO ATTORNEY GENERAL LAW LIBRARY 00047929 tmijiillinf Ontario CENTRE FOR Ministry of LEADERSHIP the Attorney General • BEST PRACTICES FOR GOVERNMENT PROCUREMENT: A CONFERENCE ON TENDERS, REP'S AND RFQ'S NOVEMBER 28, 1996 Sponsored by: The Centre for Leadership and The Ministry of the Attorney General through the Commercial Law Continuing Education Committee Co-Chairs: Margaret MacDonald Michael P. Brady ■y of the Attorney io. Ministry ercial Law Committee. for government KKFF Ontario. Ministry of the Attorney 884499 General. Commercial Law BB4488 Continuing Education Committee. 11999966 Best practices for government procurement MINISTRY OP THE ATTORNEY GENERAL LAW LIBRARY ministry of ths ATTORNEY GENERAL OCT 3 0 law LIBRARY TABLE OF CONTENTS INTRODUCTION MARGARET MACDONALD, SENIOR COUNSEL MANAGEMENT BOARD SECRETARIAT MICHAEL P. BRADY, SENIOR COUNSEL MINISTRY OF TRANSPORTATION GOVERNMENT PROCUREMENT POLICY AND PRACTICE OVERVIEW, TRADE AGREEMENTS NEIL SENTANCE, MANAGER MANAGEMENT BOARD SECRETARIAT TENDERS/RFP'S/RFQ'S - UPDATE ON THE LAW MARGARET MACDONALD, SENIOR COUNSEL MANAGEMENT BOARD SECRETARIAT PITFALLS AND TRAPS MARY FITZPATRICK, GENERAL COUNSEL LIQUOR CONTROL BOARD OF ONTARIO AUDITS PETER ALEXANDER, MANAGER COMPLIANCE & VFM AUDIT MANAGEMENT BOARD SECRETARIAT ^<rrj SCO: 6. LABOUR ISSUES INCLUDING REASONABLE EFFORT, EMPLOYEE'S RIGHTS TO TENDER, CONFLICTS OF INTEREST/UNFAIR ADVANTAGE CRAIG SLATER, SENIOR COUNSEL MANAGEMENT BOARD SECRETARIAT 7. SECURING THE PROJECT - BONDS, HOLDBACKS, LETTERS OF CREDIT, INSURANCE KENNETH SCOTT, Q.C. BORDEN & ELLIOTT R. BRUCE REYNOLDS BORDEN & ELLIOTT 8. FREEDOM OF INFORMATION ISSUES PRISCILLA PLATT, SENIOR COUNSEL MANAGEMENT BOARD SECRETARIAT 9. THE BIG PROJECT - THE HIGHWAY 407 EXPERIENCE BRIAN SWARTZ, GENERAL COUNSEL & SECRETARY ONTARIO TRANSPORTATION CAPITAL CORP 10. CONTINGENT LIABILITIES: THE APPLICATION OF THE FINANCIAL ADMINISTRATION ACT, s.28 GRAHAM STOODLEY, DIRECTOR OFFICE OF LEGAL SERVICES MINISTRY OF FINANCE Digitized by the Internet Archive in 2017 with funding from Ontario Council of University Libraries https ://arch i ve. o rg/detai I s/mag_00047929 INTRODUCTION 1 Presented by: Margaret MacDonald Senior Counsel Management Board Secretariat Michael P. Brady Senior Counsel Ministry of Transportation BEST PRACTICES FOR GOVERNMENT PROCUREMENT: A CONFERENCE ON TENDERS, RFP'S AND RFQ’S INTRODUCTION We are pleased to provide the attached materials as part of the conference held November 28, 1996. This document is intended to be a reference tool for both managers and lawyers. By way of background, the cornerstone of any contractual relationship has to be the clear allocation of risk. Preceding the contract, there will usually be an initiating document that sets out the terms of reference (RFQ, RFP, tender etc.) This initiating document is fundamentally important with respect to the ultimate contractual arrangement. We believe it is critical that there be an ongoing dialogue between both managers and lawyers. This does not necessarily mean that there needs to be legal advice on every contract because there may be a generic agreement that is in place. What is important is that there be an appropriate avenue of communication in every ministry that will allow both managers and lawyers to flag issues early in the process. This conference provides an analysis of the issues associated with the procurement exercise prior to entering the contract. Policies, guidelines and the law change and it is important to keep that in mind. You should regard this document as a snapshot of what exists now. It will need to be updated as changes occur. We would like to thank the presenters for the time and effort that has gone into preparing what we believe to be excellent materials. Their contributions will be 2 appreciated by everyone working in this area. It cannot be stressed enough that conferences such as this could not exist without sponsorship. In this instance Linda Kahn, Vice President, Centre for Leadership, Cabinet Office, and Brian Goodman, Assistant Deputy Minister, Public Law and Policy Division, Ministry of the Attorney General have taken it upon themselves to support the various initiatives of the Commercial Law Continuing Education Committee and for that we are extremely thankful. Further, we would be remiss if we did not recognize the support of the Ministry of Transportation for its assistance with the preparation of this document. On behalf of the Centre for Leadership, Ministry of the Attorney General and the Commercial Law Continuing Education Committee (Allen Doppelt, Chair, Susan Snelgrove, Corey Simpson, and ourselves), we would like to thank everybody for attending the conference and those who have contributed to the preparation of the materials. Margaret MacDonald Michael Brady Co-Chairs