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Is it wired?
A test for transparency and fairness in public procurement

by Michael Asner

On his first day in office, President Obama confirmed that fair, open and transparent would be guiding principles in his administration. He also announced that Freedom of Information legislation would be used to release information, not withhold it.

According to MSNBC, "Obama said he would change the way the federal government interprets the Freedom of Information Act. He said he was directing agencies that vet requests for information to err on the side of making information public - not to look for reasons to legally withhold it - an alteration to the traditional standard of evaluation."

Billions upon billions of dollars is about to be spent by public agencies to help with the economic recovery. How can we, the public, determine if the process for awarding these contracts has been fair and open? There are several ways to find out. First, after the contract has been awarded, we can use FOI to examine the process. Second, we could simply have each agency voluntarily report on the process it actually used without forcing the public to use FOI. However, this relies on an 'invisible stakeholder' to make the request and raise concerns. It relies on a level of accountability that is 'outside' the process. In addition, the FOI process is often untimely, cumbersome and not without a certain level of cost.

When accountability is 'built in' and driven from 'inside' the process, the taxpayer gets the information in a timely and less expensive manner. To implement this accountability mechanism would be easy: each agency would be required to complete a simple checklist as it proceeds through the process of finding a contractor. This checklist and the accompanying information would be identical to the information that an interested citizen could obtain under FOI. And when the contract has been awarded, the information would be released with all of the award information. This is a simple, low cost, totally transparent and easily understood procedure that would restore confidence in fair, open and transparent government contracting.

What should that checklist contain? How about a scoring system to ensure if the process was fair and open and transparent? Here are some critical questions:

  1. Who prepared the specifications? If the specifications were prepared by an outside firm or individual, was that firm/individual prohibited from submitting a bid or proposal? If 'yes', score '1'. Include name of person or company who prepared the specs. Include a statement as to whether they were permitted to submit a proposal.
  2. How much time was provided for the vendor' to prepare their offers. Too little time restricts competition and rewards those who have ongoing dealings with the agency. If the deliverable was a complex product or service, did the agency give the vendors at least three weeks to respond? If 'yes', score '1'. Explain how much time was allowed and why.
  3. Was the list of firms/people who received the bid documents published while the competition was still open? If 'yes', score '1'. Include a copy of that list.
  4. Was the list of vendors who submitted offers published as soon as the competition is closed? If 'yes', score '1'. Include a list of those vendors.
  5. For a Request for Proposals, did the RFP identify the evaluation factors, the importance of each factor and the evaluation process? If 'yes', score '1'. Include a copy of the evaluation factors and their weights.
  6. Was the evaluation performed by a Committee that had strict rules related to (i) confidentiality of information (ii) conflicts of interest related to vendors (iii) behavior during the time of the competition? If 'yes', score '1' Include a copy of those rules.
  7. Are the evaluators' notes and scoring sheets preserved as a record of the deliberations? If 'yes', score '1'. Include all copies.
  8. Was the contract as executed substantially the same as the Statement of Work contained in the invitation documents? If 'yes', score '1'. Include a statement addressing the issue.
  9. Was the Recommendation Memo a public document? Did it identify the answers to questions 1 through 8? If 'yes', score '1'. Include a copy.
  10. Can losing vendors receive a debriefing from the agency to discuss the merits of their offer and why it was not selected? If 'yes', score '1'. Include a copy of all vendors receiving a debriefing.

Note: Agencies receiving 8 to 10 points are exemplary and support the objectives of fair, open and transparent competition. Those who receive less than 8 should be red flagged by the procurement manager. The requirement to publish these checklists would naturally lead to stricter compliance to good public policies already in place.

Who knew that being proactive and releasing the information without an FOI request would be such a bold act! At the very least it will instill public confidence in the process and in the agency. With all the public money floating in our system, a little confidence that it is being well spent couldn't hurt the national morale.

Michael Asner is a procurement consultant based in White Rock, BC and a former columnist for Summit magazine.

© 2009 Michael Asner Consulting Inc. Reprinted by permission.

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