5. OTTAWA OPTION FOR RECEIPT AND CONSIDERATION OF UNSOLICITED PROPOSALS
Option Ottawa concernant la réception et l’examen de propositions spontanées
That Council approve the revised Ottawa Option policy, as outlined in Document 1.
RECOMMENDATION DU COMITÉ
Que le Conseil approuve la Politique relative à Option Ottawa modifiée, telle que décrite au Document 1.
1. City Treasurer’s report dated 9 February (ACS2008-CMR-FIN-0003).
2. Extract of Draft Minutes.
Comité des services organisationnels et du développement économique
and Council / et au Conseil
Financial Services/ Gestionnaire, Approvisionnement, Services financiers
(613) 580-2424 x25176, Phil.Andrews@ottawa.ca
That the Corporate Service and Economic Development Committee recommend Council approve the revised Ottawa Option policy, as outlined in Document 1.
Que le Comité des services organisationnels et du développement économique approuve la Politique relative à Option Ottawa modifiée, telle que décrite au Document 1.
On October 23rd, 2002, City Council approved the Ottawa Option Policy to govern the receipt of unsolicited proposals by the City. The original policy was instrumental in establishing a framework that allowed staff to receive and review proposals from the private sector that had not been solicited through a normal procurement process.
Although a number of unsolicited proposals are received annually requesting consideration under the Ottawa Option process, only two have met the selection criteria outlined in the existing policy, namely:
· The Street Lighting System Maintenance Services proposal undertaken in 2004; and
· The Parking Pay & Display proposal presently being worked on by staff.
Through the staff involvement in these and experience in other ineligible unsolicited proposals, it has become clear that the present process is labour intensive, and that the level of effort required from city staff, the private sector proponent of the unsolicited proposal, other vendors, and external experts can be considerable.
On April 23rd, 2008, City Council approved the use of the Ottawa Option framework for the Pay and Display Implementation (ACS2008-PWS-TRF-0007). At the same meeting, Council approved a motion (Motion 35/21) directing staff to prepare a report for CSEDC and Council reviewing the Ottawa Option, including an analysis of any weakness and options to strengthen the process. This report is intended to provide the analysis requested.
The Supply Management Division, who play a central role in the procurement component of the unsolicited proposal process, and are typically included in the analysis from the start to contract award, have welcomed the opportunity to review the existing process and recommend improvements.
The City’s experience implementing the Ottawa Option Policy has identified weaknesses in the following four areas:
2. Lack of clarity in the treatment of an unsolicited proposal where the opportunity is already the subject of an ongoing or planned procurement process. The revised policy clarifies the significance of the Purchasing By-law and introduces a process to leverage the unsolicited proposal outside the Ottawa Option Policy.
The table below summarizes the improvements recommended for approval in the revised policy, attached as Document 1.
· Unsolicited proposal required to be innovative to meet criteria
· Unsolicited proposal required to result in an improved outcome or reduced cost for the City, or build on and add benefit to an existing undertaking (innovative or not).
· Some confusion exists regarding application of the Ottawa Option process
· Defines roles and responsibilities and stipulates decision points at which the City continues or discontinues consideration of the unsolicited proposal for specific reasons.
· Policy is silent on the engagement of City Council in the approval process, to approve the application of the policy in specific cases
· City Council must consider and approve the application of the policy for all instances where the value is estimated to exceed $500,000.
· Process was unclear when the unsolicited proposal dealt with a current or planned procurement process
· When the unsolicited proposal deals with a current or planned procurement process, it will not qualify as an Ottawa Option proposal. It can, however, be leveraged by the City outside of the Ottawa Option Policy.
· More of a guideline that set out the general steps involved in the process
· Drafted in an up-to-date format, including all phases, and clarifying the required sequencing of events.
· “Right to match” does not necessarily align with the purchasing concept of fairness
· Final procurement phase using the widely recognized BAFO process (Best and Final Offer) will be fair, defendable and will result in greater competition.
Based on this analysis and experience over the years, staff is recommending the revised policy because it provides a more detailed process, which clearly expresses the City’s expectations with respect to the level of details required to determine interest in, and to assess the merits of the unsolicited proposal.
This analysis included consultation with internal stakeholders, Legal Services, and external experts, namely Brian Bourns of KPMG, and Louise Panneton of P3 Advisors, both knowledgeable in the areas of procurement law, managed competition, and issues of contractual fairness.
LEGAL/RISK MANAGEMENT IMPLICATIONS:
The revisions to the Ottawa Option, as outlined in this report, as well as the Ottawa Option itself are exceptions to the existing processes in the City pertaining to the purchase of goods, services and construction. Since the revised process for the Ottawa Option is clearly set out in the report and accompanying policy, potential and actual participants in the process will have a clear understanding of the steps involved and the possible ultimate outcomes. Further, participants are required to provide their consent in writing to proceed through the process after submitting an unsolicited proposal to the City. Consequently, the process specifically provides for what might be called "post-bidding negotiations" among the parties that in other procurement processes might be objectionable. Having regard to this background to the process, there are no Legal/Risk Management impediments to implementing the recommendation in this report."
Prior to a contract approval, Supply Management Division staff confirms that the appropriate funds are available in the budget, based on receipt of a funded requisition in SAP. The availability of funds is a condition of approval under delegated authority.
Document 1 - Ottawa Option Policy
Following approval at Corporate Services and Economic Development Committee, this report will be forwarded to Council for its consideration and approval. Staff will publish the approved policy on the intranet and Ottawa.ca.
On occasion, the City of Ottawa receives unsolicited proposals from private sector parties for projects or undertakings. When the proposal is in the best interests of the City and meets all other criteria provided in the Ottawa Option Policy, the City may consider the opportunity.
The City receives unsolicited proposals from private sector parties, which may offer improved services, reduced cost, cost avoidance, or provide other benefits. The primary objective of the Ottawa Option Policy is to permit the City to receive and consider unsolicited proposals from private sector parties in a manner that eliminates the perception of bias, and ensures transparency, fairness, and best value for the City. The policy also provides a private sector party with a prescribed process to approach the City with unsolicited proposals that protects their proprietary trade information.
This policy applies to:
· all unsolicited proposals received by the City from private sector parties, and
· all City of Ottawa employees and elected officials.
1) The unsolicited proposal must be submitted to the Manager, Supply Management Division or to a Director, General Manager, or Deputy City Manager having responsibilities that include the areas discussed in the proposal to be considered.
The information initially provided to the City, should be at
the conceptual level and shall include:
(a) A profile, highlighting the technical, commercial, managerial and financial capability of the private sector participant, identifying key team members, including members of a consortium, if relevant;
(b) An overview of the project to be undertaken, the deliverable to be achieved, or the improvement to be made to an existing undertaking, clearly defining the proposed benefit to be realized by the City of Ottawa;
(c) High level business principles for undertaking the project, including the proposed financial relationship and responsibilities of both the City and the private sector participant, as well as the respective risk sharing allocations; and
(d) Expectations by the private sector party of the City, including both financial expectations and any staff assistance in preparing or finalizing the unsolicited proposal.
3) Unsolicited proposals shall not circumvent the
City’s purchasing by-law, and shall not qualify under the Ottawa Options Policy
if in the opinion of the Manager, Supply Management Division the proposal is
similar in scope to a current or upcoming competitive procurement that has been
issued, or is planned to be issued.
However, if the proposal suggests a different scope, style or approach,
that may improve the City position in any way, the procurement process may be
suspended in order to allow the proposal suggestions to be considered. In this case, only one of the following
outcomes shall result:
With the concurrence of the proponent, the tender, proposal,
or standing offer will be amended to recognize some or all of the suggestions
contained within the unsolicited proposal, and the amended scope of work, or
objective will be publicly competed, to allow all interested “bidders” to
consider the implications; or
City will revert back to the original procurement, either planned or in
4) The Deputy City Manager will determine the eligibility of the unsolicited proposal under the Ottawa Option Policy taking into account such factors as:
(i) The goods or services are readily available from other sources in a competitive marketplace, and no unique added benefit is being proposed;
(ii) The proposed project is not of sufficient value to be pursued at this time, within overall City priorities;
(iii) The City is unable or unwilling to fund its share of the implementation or the costs associated with the competitive process;
The level of effort required of City
staff, or the cost of engaging external assistance to consider the proposal, is
excessive and would impose too great a burden on existing resources.
(a) If the unsolicited proposal is, in the opinion of the Deputy City Manager, not in the best interests of the City, the private sector party will be so advised, and no further action will be taken in relation to the proposal concept.
(b) If the unsolicited
proposal is, in the opinion of the Deputy City Manager, in the best interests
of the City, the private sector party will be notified and:
(i) provided with any available information describing the City’s requirements for the goods or services proposed;
(ii) provided with the evaluation criteria to be considered by the evaluation team, and if necessary;
(iii) requested to prepare and submit a detailed proposal, at its sole expense, within a prescribed format and an agreed upon timeframe; and
(iv) required to confirm in writing their agreement to continue in accordance with the provisions of the Ottawa Option Policy.
5) All unsolicited proposals received under the Ottawa Option Policy will be open for acceptance by the City for a minimum period of 6 months.
evaluation team will be assembled by the Director to include sufficient
expertise to evaluate the detailed unsolicited
proposal and include a representative from Supply Management. The evaluation
(a) evaluate the private sector participant’s technical, commercial, managerial and financial capability to determine whether the capabilities are adequate for undertaking the project;
(b) evaluate the unsolicited proposal in relation to the evaluation criteria provided to the private sector participant;
(c) weigh the various aspects and merits of the unsolicited proposal and the business and contract principles, and determine if the scale and scope of the project is in line with the requirements, the funding ability, and/or the interests of the City;
(d) determine whether the sharing of risk as proposed in the unsolicited proposal is acceptable to the City;
(e) consider both the level of effort required of City staff in relation to any proposed benefit, and the degree to which the project conforms with the long term objectives of the City.
upon the outcome of this detailed evaluation, the City will:
(a) reject the unsolicited proposal thereby ending any further obligation on the City’s part; or
(b) request amendments, clarifications or modifications to the unsolicited proposal; or
(c) accept the proposal as being in the best interests of the City and seek approval as follows:
The detailed unsolicited proposal includes attributes
recognized as acceptable under section 22 of the Purchasing By-law dealing with
the issue of Non Competitive Purchases.
If, in the opinion of the Deputy City Manager, the detailed unsolicited
proposal meets any of the sole source criteria that are defined in the by-law,
it can be evaluated on a business case basis, with no requirement for further
competition. The proposal will be
considered and approved at the appropriate level of delegated authority, or
referred to Council if appropriate.
ii. The Director shall seek approval in accordance with the delegated authority to consider the proposal for the Ottawa Option procurement process. Regardless of the approval requirement, in all cases, consideration must be made for the need for an external fairness commissioner, in order to ensure independent oversight of the process.
1) The City Manager and Deputy City Managers will have delegated authority to approve the application of the Ottawa Option for undertakings where the value of the revenue, cost or benefit is not expected to exceed $500,000. City Council will be required to approve the application of the Ottawa Option for all undertakings where the value of the revenue, cost, or benefit is expected to equal or exceed $500,000.
2) Where funding for the purpose envisioned in the unsolicited proposal is required which Council did not previously approve, a report must be presented to City Council for approval of the required funds.
3) Following approval of the Ottawa Option, the selection of the successful proponent may be approved by the City Manager, or Deputy City Manager under delegated authority in accordance with the provisions of the purchasing by-law.
1) Following the approval to proceed with the Ottawa Option, staff in the Supply Management Division in conjunction with the operational unit, will invite competing counter proposals, in a transparent, fair and equitable manner in accordance with the principles contained in the Purchasing By-Law by:
a) communicating the opportunity using an Ottawa Option Request for Proposal (RFP), through an internet based bid distribution network, defining the Ottawa Option procurement process, and allowing sufficient time for any interested party to submit a counter proposal;
b) providing interested proponents with the main concepts of the detailed unsolicited proposal, including the contract principles and risk sharing framework, while keeping proprietary information contained in the original proposal confidential to the extent possible; and
c) ensuring that the original evaluation team evaluates all counter proposals received, with any necessary changes to the team membership requiring approval by the Manager of Supply, and the fairness commissioner, if applicable.
2) If the Ottawa Option RFP results in no counter proposal being received, or if the counter proposal(s) are evaluated and found to be equal to or inferior to the original unsolicited proposal, in the sole opinion of the City, a recommendation will proceed to award the contract under delegated authority to the original private sector party.
3) If the Ottawa Option RFP results in one or more counter proposals being received, and if, in the sole opinion of the City, the counter proposal(s) are evaluated and found to be superior to the original unsolicited proposal, the City will proceed to determine the successful participant through a final procurement phase known as “Best and Final Offer” (BAFO).
(a) BAFO as applied to the Ottawa Option is the process whereby the City will invite the original private sector party and the proponent submitting the superior counter proposal to engage in a BAFO phase. The invitation to participate in the BAFO phase will provide to both participating proponents:
(i) the general concepts that were considered superior to the original proposal, while keeping proprietary information contained in the proposals confidential to the extent possible; and
(ii) the pre-established evaluation criteria or the “basis of award” to be used to determine the successful proponent.
(b) Offers received in response to the BAFO invitation will be reviewed by the evaluation team and scored in accordance with a pre-established criteria, or alternatively, in accordance with the “basis of award” provision identified through the BAFO process. The successful proponent will be the proponent offering “best value” to the City.
(c) In all cases, the basis of award will be “best value” to the City, as defined in the Purchasing By-Law, in the sole opinion of the City.
The Director will be responsible for determining whether the unsolicited proposal qualifies under the Ottawa Option policy from a business perspective, and if the City should continue to entertain the proposal.
The Manager of Supply will be responsible for determining if the undertaking is similar in scope to a current or planned procurement activity.
The City Treasurer will be responsible for the Ottawa Option process that invites and evaluates competing proposals.
The City Manager, or Deputy City Manager must approve any decision to reject an unsolicited proposal, based on supporting rationale provided by the Director.
City Council will be responsible for approving the application of the Ottawa Option for all undertakings where the value of the revenue, cost, or benefit is expected to equal or exceed $500,000.
Senior Management is responsible for ensuring that their employees are fully aware of the requirements and for enforcing this policy.
The Purchasing By-Law, number 50 of 2000, recognizes the Ottawa Option Policy, under section 25 – Unsolicited Proposals.
All managers shall monitor compliance to this policy. Failure to comply with this policy may result in employee disciplinary action.
Best Value means the optimal balance of performance and cost determined in accordance with a pre-defined evaluation plan.
City means the Corporation of the City of Ottawa, as represented by the appropriate management level, in accordance with the Purchasing By-Law, and the Delegation of Authority By-Law.
City Council means the elected Council of the City of Ottawa.
City Manager means “level one” management at the City.
Competitive procurement means a publicly competed opportunity for bidders using one of the several bid solicitation documents, generally distributed electronically.
Conceptual Level Proposal means the initial “high level” unsolicited proposal submitted by the private sector party, to be considered by staff under the Ottawa Option Policy.
Counter Proposal means a responsive proposal received as a result of the Ottawa Option RFP, from a proponent other than the original private sector proponent.
Deputy City Manager means “level two” management at the City and includes the statutory positions of the City Treasurer and City Solicitor reporting directly to the City Manager.
Detailed Proposal means a proposal prepared in sufficient detail to allow evaluation against the criteria established by the City.
Director means “level three” management at the City, and may also include “General Manager” positions.
Evaluation Team means the team put together by the Director to review and analyze the proposals, and may be comprised of City staff, external consultants, elected officials and members of the public, as warranted in each case.
Inferior Proposal means a competing counter proposal received in response to an Ottawa Option RFP, evaluated in accordance with pre-determined criteria by an Evaluation Team, and deemed to be of less value to the City, than the original unsolicited proposal.
Ottawa Option Request for Proposal (RFP) means a public proposal opportunity issued by the City of Ottawa, intended to allow competition in relation to the receipt of an unsolicited proposal.
Private Sector Party means the original sponsor of the unsolicited proposal, that led to the consideration of eligibility under the Ottawa Option, and may be an external private sector vendor or consortium, or any other proponent.
Purchasing By-Law means By-Law 50 of 2000 of the City of Ottawa, as amended.
Superior Proposal means a competing counter proposal received in response to an Ottawa Option RFP, evaluated in accordance with pre-determined criteria by an Evaluation Team, and deemed to be of greater value to the City, than the original unsolicited proposal.
Unsolicited Proposal means a proposal received by City staff from a private sector vendor, consortium, or any other proponent, which was not provided in response to a formal request from the City, but which was submitted through the initiative of the proponent.
For additional information contact:
Philip S. Andrews
Manager Supply Management Division
OTTAWA OPTION FOR RECEIPT AND CONSIDERATION OF UNSOLICITED PROPOSALS
Option Ottawa concernant la réception et l’examen de propositions spontanées
Ms. Marian Simulik, City Treasurer, prefaced the presentation by indicating the City Manager had advised her that his office would be bringing forward a policy to deal with proposals for land development but that the current policy proposal did not deal with land development. It was pursuant to the Purchasing By-law and it pertained to the purchase of goods and services.
Mr. Phil Andrews, Manager of Supply, spoke to a PowerPoint presentation, which served to provide an overview of the differences between the current Ottawa Option Policy and the proposed revised Ottawa Option Policy. A copy of his presentation is held on file.
Responding to a question from Councillor Hume, Ms. Simulik re-iterated that this policy dealt with the purchasing of goods and services only. It was not a mechanism for dealing with proposals to develop properties such as arenas, Lansdowne Park or JetForm Stadium.
Councillor Hume asked for an explanation of the competitive element to this proposed policy. Mr. Andrews explained that staff would “shop around” the unsolicited proposal to see if there was any interest and if the interest received was better, the first private sector party and the superior proposal would have a chance at a Best and Final Offer (BAFO) process.
Councillor Hume wondered how this varied from the current policy. Mr. Andrews indicated the current policy contained a right to match component where the initial private sector participant, if faced with a superior counter proposal, would simply have to agree to do match it or better it and there was no opportunity for the superior proponent to be engaged. He advised that the right to match component had so far made it difficult for staff to encourage competition at that stage of the process.
Councillor Hume inquired as to sole-sourcing and when staff would be able to utilize such a procurement mechanism. Mr. Andrews stated that the Purchasing By-law stipulated a number of criteria, which had been quite effective over the years, but he submitted that it was a narrow window. The criteria includes such things as, whether there was a monopoly, if there was a legislated requirement, if, based on their knowledge of the industry, staff was aware that competition would be made difficult by any sets of circumstances or if it was in the best interest of the City not to open something up to competition. As an example of the last criteria, he noted that if the City was going to build a facility for the Police Service where it was clear that some of the diagrams and schematics should not be made public, a sole-source contract could be considered.
Responding to some final questions from Councillor Hume with respect to proprietary technology and sole-sourcing, Mr. Andrews explained that if a vendor came forward with a proposal with some proprietary technology, there were no competing technologies available in the market and it was in the municipality’s best interest to do so, the City could enter into a sole-source contract. However, if there were competing technologies or if there was some different methodology available that could achieve the same results, then it would not be appropriate to enter into a sole-source contract because it would be in the City’s best interest to shop around.
Councillor Desroches was pleased to see this revised policy come forward because he felt it was important for the City of Ottawa to show that it was open for business. He believed the revised policy would help the City be more innovative. He also noted that it provided a balance with respect to openness and accountability. However, he inquired as to the participation of a fairness commission, which the City had used from time to time to strengthen its openness and transparency. Mr. Andrews confirmed that the City did rely heavily on a fairness commissioner in these types of issues and that it was staff’s intention to continue to do so. He noted that in the detailed policy, contained at Document 1 of the report, there was some wording in this regard.
Responding to a question from Councillor Desroches with respect to the $500,000 threshold referenced in the policy, Mr. Carey Thomson, Manager of Legal Services, explained part of the rationale for choosing this figure related to the City’s Delegation of Authority By-law, where currently the threshold was $500,000.
Councillor El-Chantiry inquired as to best practices across Ontario. Mr. Andrews reported that in 2002, when the current Ottawa Option policy was brought forward, it was fairly innovative and it solved a problem for the City of Ottawa. Since then, the City of Toronto had adopted a very similar policy and he submitted that globally, the concept of this kind of process had been very well received.
Responding to further questions from Councillor El-Chantiry, Mr. Andrews acknowledged that the City’s Purchasing Centre of Expertise had been very successful. He referenced the Council motion that had precipitated the review of the Ottawa Option Policy, which directed staff to look at the policy for any weaknesses and he indicated he had welcomed this opportunity because, although it was a very good process, it had been seven (7) years since the policy was adopted and the review had provided an opportunity for tweeking. He stated that he believed the revised Policy would improve the process. Speaking to the Auditor General’s recommendations coming out of the procurement audit, Mr. Andrews indicated staff agreed with some of the recommendations and had changed their processes as a result. He submitted that the current policy proposal was meant to align a little better with the Purchasing By-law in terms of fairness and transparency. Therefore, he felt it was a positive improvement.
Councillor Cullen referenced the intake process, noting that the original purpose of the Ottawa Option process was to encourage innovation. He also noted the report talked about adding a benefit to an existing undertaking, whether innovative or not and he assumed that it would have to be a substantive benefit. Ms. Simulik confirmed that for staff to undertake looking at a proposal, it would have to be a substantive benefit.
Responding to a further question from Councillor Cullen, Mr. Andrews confirmed that the reporting mechanism for elements under $500,000 would be through the quarterly Delegated Authority report.
Councillor McRae referenced some accusation that any changes to this process or the proposal itself were not open, not transparent and not competitive. She asked staff to comment on this. Ms. Simulik maintained that what staff was proposing was a competitive process. She explained that if something was deemed to be an Ottawa Option, staff would go out and invite other competitors to bid on it. In addition, she noted the revised Policy proposed an enhancement to the City’s ability to get the most benefit by introducing a BAFO process at the end of it. Therefore, she submitted that it was competitive and it was open. In fact, she believed the proposed policy would make it easier for the vendor community to approach the City by putting some definition around what would qualify, noting that in the past, there had been some confusion about unsolicited proposals for goods and services. She advised that, once approved by Council, staff would be articulating this Policy with the vendor community so that they would be aware of it. Therefore, she re-iterated her belief that this was open, competitive and transparent and that it would provide a better benefit to the City than the previous process.
Further to Ms. Simulik’s response, Councillor McRae submitted that any claims to the contrary were frivolous, vexacious and unreasonable. She expressed frustration with respect to the receipt of e-mail messages from residents who had been misinformed about the proposal and she expressed appreciation for the City Treasurer’s honest answers. She asked why the Treasurer had prefaced the staff presentation by talking about land development. Ms. Simulik referenced e-mails received from residents expressing concerns around unsolicited proposals for land development and she explained that, in order to stop the discussion, she felt the need to identify that this was not the purpose of the present policy proposal.
Responding to a follow-up question from Councillor McRae, Ms. Simulik re-iterated that the current policy proposal did not pertain to public land. It was about the purchasing of goods and services.
Councillor McRae asked the City Manager whether any member of Council had approached staff prior to the meeting to ask about this policy vis-à-vis land development or the Lansdowne Live proposal. Mr. Kirkpatrick stated that, having not talked to all City staff, he could not answer the question definitively.
Councillor McRae stated her opposition with respect to the false information that was disseminated to the public implying that by passing this Policy, it was a backroom deal and that the City was jeopardizing the future of Lansdowne Park.
Councillor Doucet noted that, based on the City Treasurer’s comments, this policy would not apply to land like Lansdowne Park and staff could not use this process for land at Lansdowne Park. Ms. Simulik re-iterated that what staff had brought forward today was for purchasing goods and services and so land development would fall outside of this policy.
Councillor Doucet asked, under what authority the design competition for Lansdowne Park had been cancelled.
Councillor McRae raised a point of order. She noted that what was before Committee was the Ottawa Option policy and submitted that Councillor Doucet’s question was off-topic.
Mayor O’Brien recognized the point of order but indicated he would allow Councillor Doucet an opportunity to explain how his question was relevent to the issue.
Councillor Doucet indicated he did not understand why the design competition had been cancelled and submitted that, when he saw proposals such as the one currently before Committee come out the day before a meeting, he became suspicious. Mr. Kirkpatrick referenced a memo he had sent to members of Council outlining what he recommended as a process to move forward with the consideration of the Lansdowne Live proposal and his recommendation was that the design competition be suspended to allow for a consideration of the aforementioned proposal. He indicated his memo also asked that members of Council contact him if they had any questions or concerns with respect to his recommendation. Furthermore, he recalled that Councillor Doucet had tabled a Notice of Motion to direct a different approach but had subsequently withdrawn it. Therefore, having not received any questions or concerns in response to his memo, in which he made a recommendation and invited feedback on that recommendation, and given that Council did not direct a different approach, he submitted that the design competition was halted under Council’s authority.
Responding to a question from Councillor Doucet, Ms. Simulik clarified that the City did not win a procurement award under the Ottawa Option because the O-Train was not an Ottawa Option proposal. She explained that to date, there had only been two (2) Ottawa Option proposals; one for street lighting maintenance and one for parking.
In light of this response, Councillor Doucet wondered why the City needed to spend so much time and effort to come forward with a whole new procurement process when the previous process had only been used twice. Mr. Kirkpatrick stated that, like most of what staff did, the review was undertaken because Council directed it. He reminded Committee that, during consideration of the Pay and Display proposal, Council asked that staff review the Ottawa Option policy and come forward with recommended improvements to it. He indicated the current report was in response to this direction.
Responding to a question from Councillor Brooks, Mr. Andrews confirmed that the Ottawa Option process would not have an impact on the tenders, quotations and proposals used to encourage small businesses and the rural sector when tendering for goods and services.
Ms. Teena Hendelman indicated the new Ottawa Option policy had provoked a feeling of unease in her. She believed unsolicited proposals could have a salutary effect on municipal government, especially if they were innovative or could provoke examination of current practices or expenditures. However, if handled in a manner that was not seen to be open, fair and critical, they could convey the wrong message to taxpayers. She believed the revised policy was an attempt to make the process more fair and critical. However, she submitted the problem was with a lack of clarity about the intent of the policy, problems in the wording of the policy, the establishment of the need for revision at this particular time, and the rushed nature of the report with short notice to community associations and the public. She noted that the present wording did not make clear the kinds of projects that would be affected, though this had been cleared-up by the City Treasurer. She believed residents wanted to feel confident that they received value for money spent and that municipal officials were not too easily wooed by vested interests bringing forward their unsolicited proposals. She hoped City officials would not be granting permits or using City resources when accepting proposals that were not properly vetted and not subject to fair competition. She maintained that the public wanted to have input into City projects, both solicited and unsolicited, and that democracy was a jealously guarded value. Ms. Hendelman referenced the tabled contained in the report, which summarized the changes between the existing policy and the proposed revised policy and she posed questions for clarification in each of the statements she felt were unclear and/or commented on each of the statements that caused her concern.
Councillor Bloess wondered what had triggered the speaker’s initial reaction. Ms. Hendelman suggested the whole thing was not clear enough and residents did not know what it was about. The purpose of the policy was only made clear at the meting.
Ms. Carol MacLeod felt the previous speaker had summarized her concerns nicely and she did not wish to re-iterate comments already made. She believed having the intent of the policy clarified went a long way to answering her concerns. She referenced her property taxes and the rate at which they were slated to increase and she submitted that she had a large stake in this issue. She suggested that several recent decisions, which had been delegated to executive authority, had affected her negatively and she felt she had every right to be concerned. She asked, when dealing with this kind of policy development, that the City attempt to clarify the language so resident would understand its purpose and intent.
Ms. Catherine Lindquist and Mr. Robert Nadeau, Glebe BIA
Ms. Lindquist began by introducing Mr. Nadeau and providing an overview of his qualifications as they relate to the present subject matter. She submitted that they had received this report on short notice and were trying to do their due diligence, as a new local board of the City. She indicated they also had concerns about how this might impact Lansdowne Park and she asked for an opportunity to come back to that following Mr. Nadeau’s comments on the revised Ottawa Option policy.
Mr. Nadeau began by saying that he thought the document had a lot of merit. He felt it was important to have an unsolicited proposal policy that was clear and articulated. On the whole, he believed there were a number of good things in the policy, such as the tie-in to the Purchasing By-law and the $500,000 threshold, which he felt was reasonable because it would preserve accountability while providing flexibility. However, he expressed concerns with some of the language in the report. He referenced the tabled summarizing the changes between the existing policy and the proposed revised policy, and wondered what was meant by “leveraged by the City outside of the Ottawa Option.” He felt one of the weak points of the policy was the lack of evaluation criteria. He reviewed what had been described earlier by staff in terms of the process and submitted that, once a competitive process was initiated, the laws of competitive bidding were triggered, which implied duties with respect to fairness, equal treatment and so forth.
At this juncture, Mayor O’Brien advised the speaker that his five-minute time limit had expired.
Councillor Doucet asked the delegation to comment on any legal / risk management implications for the City in regards to this new policy. Mr. Nadeau expressed surprise over the statement in the report that there were no legal / risk management impediments to implementing the policy. He felt there were risks, a large part of which related to the BAFO process. He submitted BAFO itself was not a bad process but that it had to be managed very carefully.
Mr. Nadeau qoted from a text on procurement law, which cautioned risks. He re-iterated that when the laws of competitive bidding were triggered, this came with an obligation to provide equal information to all participants so that there could be a level playing field. In support of his argument, he referenced statements in the report with respect to providing the main concepts of a proposal and protecting proprietary information to the extent possible. Therefore, he recommended greater clarification in order to minimize risks.
With respect to BAFO, Mr. Nadeau read passages from a text on procurement law, which spoke to parameters for and the legal risks associated with BAFO processes, and submitted there were three areas where issues of unfairness could arise; at the short-listing, in the questions and information given to short-listed vendors, and at the final evaluation.
Councillor Chiarelli raised a point of order. He referenced the five-minute time limit for public delegations and maintained that questions to delegations were not supposed to be used as a means to double the time of presentations.
Mayor O’Brien noted the legal points made by the delegation and suggested that staff review the information presented by Mr. Nadeau to see if there were opportunities to improve the proposed policy and if so, to make those technical amendments prior to Council.
Ms. Lindquist offered to provide a written copy of the presentation to staff and to members of Council.
Councillor Cullen asked for an explanation of the statement contained in the report with respect to leveraging. Mr. Andrews indicated this was described better in the proposed policy itself, which was attached at Document 1 of the report. He explained that essentially, staff was suggesting that if an RFP was being planned or was in process and someone came along with an idea that was on target, the City would not allow the Purchasing By-law to be circumvented and set aside for the Ottawa Option proposal. Instead, staff would have discussions with the proponent to see if there could be an addendum issued to the RFP to incorporate some of those good ideas.
Councillor Doucet raised two matters of personal privilege, the first being the accusation that he somehow acted in a frivolous way. He indicated that he received these documents on Friday and did not appreciate working through the weekend trying to figure out what they were. He mentioned having sent them out to independent counsel and that no one picked up that this process did not apply to land development. Therefore, he felt his misunderstanding was understandable. Secondly, he referenced the Notice of Motion he had tabled and later withdrawn and explained that he withdrew the motion on the advice of a colleague who suggested waiting until Council received financial information; information which had yet to arrive. In closing, he acknowledged that he had withdrawn his motion but submitted he had done so under circumstances that were not respected.
Coming back to her earlier question, Ms. Lindquist indicated she was pleased that the Ottawa Option policy would not pre-empt Lansdown in terms of due process. However, she expressed some confusion as to what that process might be.
Mayor O’Brien indicated this was not an opportunity for delegations to ask questions. However, he understood the concerns being expressed and indicated that a report would be made available following the meeting in order to satisfy the inquiry.
Following these exchanges, Committee voted on the report recommendation.
That the Corporate Service and Economic Development Committee recommend Council approve the revised Ottawa Option policy, as outlined in Document 1.