using treaty-compliant nrfps -...
TRANSCRIPT
Using Treaty‐Compliant NRFPs
Paul EmanuelliGeneral Counsel and Managing Director
Procurement Law [email protected]
416‐700‐8528
www.procurementoffice.com
Copyright Notice
The following excerpts from GovernmentProcurement (copyright LexisNexis Butterworths2005, 2008, 2012 and 2017), The Laws ofPrecision Drafting (copyright Northern StandardPublishing 2009), Accelerating the Tendering Cycle(copyright Northern Standard Publishing 2012) andthe Procurement Law Update newsletter (copyrightPaul Emanuelli 2006-17) are reproduced withpermission. The further reproduction of thesematerials without the express written permission ofthe author is prohibited.
© Paul Emanuelli, 2017
For further information please contact:[email protected]
About the AuthorPaul Emanuelli is the General Counsel andManaging Director of the Procurement Office. Hewas recognized by Who’s Who Legal as one of thetop ten public procurement lawyers in the world.His portfolio includes advising on strategicgovernance in public purchasing and onnegotiating high-profile major procurementprojects. Paul has an extensive track record ofpublic speaking, publishing and training. He is theauthor of Government Procurement, The Laws ofPrecision Drafting, Accelerating the TenderingCycle and the Procurement Law Updatenewsletter. Paul hosts a monthly webinar seriesand has trained and presented to thousands ofprocurement professionals from hundreds ofinstitutions across North America through theProcurement Office and in collaboration withleading industry organizations including NIGP,SCMA, the University of the West Indies andOsgoode Hall Law School.
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Using Treaty-Compliant NRFPsOverview
While Canada’s new trade treaties have formally recognizedNegotiated RFPs, many Canadian institutions were ahead ofthe adoption curve and have years of experiencesuccessfully deploying flexible formats in their major projectsand day-to-day procurements. From early adopters to recentinnovators, this webinar will trace the evolution of NRFPsacross Canada by drawing on examples from every regionand sector of the country. This presentation will also providekey reasons for using NRFPS, along with recommendationson how to successfully deploy these flexible formats underthe new trade treaties.
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Recognition of Negotiated RFPs Formal Trade Treaty Adoption
Article 512 of the Canadian Free Trade Agreementintroduced express new protocols for using negotiationsduring a procurement process. These protocols require thedisclosure of the intention to use a negotiation process,require that transparent criteria be used in the eliminationof any suppliers during that process, and prohibit unfair ordiscriminatory treatment of any suppliers during thenegotiations.
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Recognition of Negotiated RFPs Concurrent and Consecutive Formats
For processes using concurrent negotiations, the protocolsrequire that suppliers be provided with the same deadline tosubmit their new or revised tenders. For processes usingconsecutive negotiations, the protocols require that aspecific amount of time be specified for a supplier to submitits final offer prior to proceeding to negotiate with the next-ranked supplier. The Article 512 protocols also allow for theuse of a negotiation process for tie-breakers when theoriginal evaluation resulted in no clear winning tender.
The Rise of Negotiated RFPsPhasing Out Contract A
With an increasing number of Canadian purchasinginstitutions adopting international best practices andimplementing flexible, low-risk negotiated RFP models foreverything from construction to information technologycontracts, how long will it be before competitive biddingevolves to render the high-risk and inflexible “Contract A”operating system completely extinct?
This article by Paul Emanuelli was previously published in the Summer of 2013 and was recently updated for this presentation. 7
The Rise of Negotiated RFPsBattle of the Operating Systems
In 1981, the Supreme Court of Canada’s R. v. RonEngineering decision imposed fixed-bid “Contract A”legalities onto the Canadian tendering process; however, in1999, the Supreme Court’s M.J.B. v. Defence Constructiondecision counterbalanced Ron Engineering and confirmedthat purchasing institutions remain free to use traditionalcontract law to negotiate flexible low-risk competitive biddingprocesses. After years of competing operating systems, wehave reached the tipping point: Contract A is in anirreversible decline. Negotiated RFPs are the emergingstandard.
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The Rise of Negotiated RFPsContract A: Always a Bad Fit
Why was Contract A ever used in the first place? Just asRon Engineering’s fixed-bid Contract A precedent wastaking effect within the construction sector, seniorgovernments across Canada were establishing tradetreaties that required open, competitive bidding for mostsignificant government purchases. Governments needed toquickly establish an operating system to facilitate these newrequirements, so they repurposed the constructionindustry’s fix-bid tendering format and imposed itsidiosyncratic rules on everyone else.
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The Rise of Negotiated RFPsPreconditions for Fixed-Bid Tendering
Lost in that equation was the fact that there were a numberof pre-existing industry conditions that led to fixed-bidtendering in the construction industry, including an army ofindependent architects and engineers ready to preparedetailed specifications for the owners, an establishedindustry group that created standard-form contractboilerplate to incorporate into tendering documents, and aprime-subcontractor supply chain that was ready to bid onpre-fabricated tender calls with bid bonds provided by thebonding industry.
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The Rise of Negotiated RFPsSystemic Defects
This combination of critical pre-conditions does not exist inother industries, yet under Contract A all sectors werecalled on to bid on government contracts under the sameoperating system used for construction tendering. Outsideof the construction sector, this led to significant problems indesigning and awarding contracts suited to the specificindustry and project. By the 1990s, the systemic defectswere largely apparent to anyone following the case law or intune with conditions at the front lines of the procurementcycle.
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The Rise of Negotiated RFPsThe Peter Principle: Explaining Contract A
Wikipedia defines the Peter Principle as follows:
The Peter Principle is a concept in management theory formulated byeducator Laurence J. Peter and published in 1969. It states that theselection of a candidate for a position is based on the candidate'sperformance in their current role, rather than on abilities relevant to theintended role. Thus, employees only stop being promoted once they canno longer perform effectively, and “managers rise to the level of theirincompetence.” The Peter Principle is a special case of a ubiquitousobservation: Anything that works will be used in progressively morechallenging applications until it fails. This is the "generalized PeterPrinciple". Peter noted that there is a strong temptation for people to usewhat has worked before, even when this might not be appropriate forthe current situation.
12Source: Peter principle, Wikipedia: https://en.wikipedia.org/wiki/Peter_principle
The Rise of Negotiated RFPsThe Supreme Court Reboots Bidding
By confirming a clear passage out of Ron Engineering’sContract A minefield, the Supreme Court’s M.J.B. decisionserved as the catalyst for rebooting the procurement cycle.Giving purchasing institutions the right to choose anotheroperating system for competitive bidding that allowed themto cut through piles of red tape, avoid countless legalentanglements, and negotiate refinements to align theirtendering formats with a broader range of industries was abetter fit than imposing a one-size-fits-all solution ontoevery tendering process.
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The Rise of Negotiated RFPsA Superior Operating System
More and more purchasing organizations soon beganrealizing that client satisfaction, supplier engagement andoverall compliance with open tendering obligations could beincreased by adopting a more flexible approach totendering. The bottom line was that traditional contract lawwas proving to be a superior operating system, workingbetter in more situations than the mass-produced ContractA steamroller.
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The Rise of Negotiated RFPsConstruction Moves Beyond Contract A
In this tale of two operating systems, the post-M.J.B. yearshave seen a steady erosion of the once seeminglyunassailable Contract A operating system. In fact, even withinthe construction sector, we see an accelerating migrationtowards flexible formats. This is particularly true domesticallyand internationally in the use of negotiated RFPs for complexand high-risk projects. The endorsement of these formats inthe United Nations Commercial Contracting Committee’sModel Procurement Law and Model Legislative Provisions onPrivately Financed Infrastructure Projects further underscoresthe mainstream and widespread adoption of flexible formatswithin the construction industry.
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The Rise of Negotiated RFPsThe Tipping Point of Innovation
Outside of the construction sector, change has occurred atan even faster pace. The spark of innovation has been liton multiple fronts. From the Atlantic to the Pacific, theArctic to the Equator, the standardized process-drivenapproach to tendering has lost ground to a moreprincipled, nuanced and substantive approach. The tippingpoint has arrived within Canada and across many otherCommonwealth jurisdictions.
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The Rise of Negotiated RFPsRectification Processes
The negotiated RFP has set the new standard by simplyworking better at meeting the overall needs of the tenderingcycle. For example:
• When bids contain irregularities, it’s no longer necessaryto disqualify bidders. Transparent rectification processescan now be used to maximize competition by allowing allproponents to cure irregularities in their bids, thusensuring full competition while avoiding tendercompliance lawsuits.
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• When bids come in over budget, it’s no longer necessaryto cancel and retender and expose the institution toproject delays and potential bid-shopping lawsuits. WhileNegotiated RFPs permit the safe termination of abidding process, they also help organizations avoid re-tendering by enabling transparent post-bid priceadjustments so contract awards can be made on timeand on budget.
The Rise of Negotiated RFPsAvoiding Budget Roadblocks and Bid-Shopping Battles
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• When a selected proponent wants to discuss contractterms, it’s no longer necessary to impose pro formaboilerplate agreements with “take it or leave it” ultimatums.Where required, flexible formats permit the post-biddialogue necessary to tailor contract terms to better reflectthe interests of both parties.
The Rise of Negotiated RFPsFine-Tuning Contract Terms
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• When suppliers propose a creative solution that can savetime and money, it’s no longer necessary to leave value onthe table and reject new approaches. Negotiated RFPsallow you to obtain improved performance standards andimproved pricing through structured, transparent anddefensible negotiation processes.
The Rise of Negotiated RFPsEnabling Creative Solutions
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The Rise of Negotiated RFPsThe Process Serves the Purpose
With Contract A tendering, the need to avoid getting suedoften trumps the need to put a contract in place and havethe requirements delivered on time. Rather than paving overthe strategic objectives of a transaction with proceduralorthodoxies, the use of flexible formats has re-establishedthe paramount importance of achieving the desiredoutcome. With flexible Negotiated RFP formats, process nolonger needs to be an end in itself. Timely results matter.The final contract is once again paramount.
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The Debate is Over, the Verdict is InAfter years of innovation and success, the debate overwhether institutions should use flexible tendering formats isover. The verdict is in. The industry is voting with its feet inits race to adopt negotiated RFPs.
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35%
27%
38%
Has your organization deployed the concurrent and consecutive negotiated RFP formats recognized under the new trade treaties in a manner that is
compliant with Canadian law?
No
Not Sure
Yes
June 2017 Treaty Compliance Survey
Survey conducted of Procurement Law Update newsletter subscribers in the spring of 2017. 23
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2008 BC Auditor Report on JSP RFPsA Good Start for Procurement Innovation
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2008 BC Auditor Report on JSP RFPsLooking for Solutions, Not Off-the-Shelf Answers
In its 2008 audit report entitled “An Audit of Joint SolutionProcurement and the Revenue Management Project”, theBC Auditor General explained that “Joint SolutionProcurement is a process intended to solve complexbusiness problems where there isn’t a clear “off the shelf”solution. It seeks to use private sector expertise to providea range of options.”
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2008 BC Auditor Report on JSP RFPsHigh-Stakes Procurements
As the report noted, through these negotiated RFPprocesses, the BC government was able to successfullyconclude contracts in a number of highly complex areas:
With the support of a dedicated support team, ministries havecompleted a total of ten contracts worth $1.6 billion. These contractscover a wide range of services including the administration of MedicalServices Plan and Pharmacare premiums, tax revenue collection, andthe provision of high-speed internet connections.
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2008 BC Auditor Report on JSP RFPsFollowing Good Practices
The BC Auditor General also concluded that theseprocurements were conducted in accordance with goodpractices:
This audit looked at whether generally accepted principles of goodpractice for outsourcing large services such as these are incorporatedinto the process used by government. It also looked at one of the firstprojects completed to see if these principles were followed in practice.We concluded, from our work, that the Joint Solution Process and theoutsourcing of revenue management substantially met the principles ofgood practice identified. We found that strong guidance and support areprovided for ministries using the process.
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U of T Wins National CAUBO AwardSetting the Standard for Public Procurement
In 2009 the University of Toronto adopted the ConsecutiveNegotiation RFP format as its default tendering format for allnon-construction procurements. In 2012, its innovations inthis area were recognized with the National First Prize of theCanadian Association of University Business Officers Qualityand Productivity Award.
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As the University stated in its June 2012 media release:
University of Toronto’s new Negotiable RFP is a public procurementmethod with a state-of-the art legal mechanism developed incollaboration with the Procurement Law Office. This innovation allowsunprecedented flexibility for clients to tailor deliverables to best meettheir project needs. Prior to the Negotiable RFP, the conventionalprocurement process locked the buyer into an agreement that could notchange. More importantly, the process has resulted in significantnegotiated enhancements above and beyond solutions proposed by themarket. This is a significant advantage especially in highly intensiveresearch environments such as U of T, where technologies often changefaster than the RFP process life cycle.
U of T Wins National CAUBO AwardNegotiating Contract Improvements
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As further detailed in the award abstract, the NRFPsresulted in increased process compliance, supplierparticipation and customer savings:
The results of the change have far exceeded expectations. One yearafter implementation, process compliance rose from 50% to 99%, thenumber of RFPs submitted rose from 70 to 113 (a 60% increase in use ofthe RFP process) and hard dollar savings generated by the negotiationstep in excess of any amounts proposed in the original RFP responsesamounted to $1.1 million. There have also been significant otherequipment enhances that cannot be quantified.
U of T Wins National CAUBO AwardIncreased Compliance, Competition and Savings
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In its abstract, the University emphasized the importance ofproper training and education in the use of NRFPs:
Endorsement by thought leaders in the procurement field underscoresthe effectiveness of promoting transferability through education. SaysPaul Emanuelli, General Counsel of the Procurement Law Office andauthor of "Government Procurement": "The U of T NRFP initiative wasinstrumental in acting as a catalyst to further adoption of the negotiatedapproach within the university sector in Ontario and, by serving as a casestudy through the Osgoode program in Toronto and Trinidad and throughthe CPPC conference in Quebec City, as a standard setting exerciseacross the broader public sector within Ontario, across Canada andaround the Commonwealth."
U of T Wins National CAUBO AwardTraining and Education
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The abstract also noted how NRFPs led to better solutions:
Since it was first implemented in 2010, a growing number oforganizations in Canada and abroad want to learn as much as they canabout the NRFP. Many already have a sense of the unprecedented,positive and proven impact this innovative RFP program has made inrevolutionizing the procurement business in Canada and abroad, withpotential to extend far beyond academic arenas. Already, research-intensive, decentralized institutions (many publicly-funded) have seenimmediate value in the NRFP's ability to, for the first time: - Introducesignificant flexibility to the RFP process without compromising legalrequirements and remaining true to transparency and fairness - enhancequality and value to our customers by exploring what existing andpotential product solutions are available and accessible.
U of T Wins National CAUBO AwardFinding Better Solutions
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As announced in November 2013 at the Canadian PublicProcurement Council’s annual conference in St. John’s,Newfoundland, the City of Lethbridge was the recipient ofSummit Magazine’s Leadership in Public ProcurementAward for 2013. The award is the culmination of aprocurement governance overhaul commenced severalyears ago at the City of Lethbridge that featured thedeployment of flexible tendering formats such as theDialogue RFP.
Lethbridge Leverages the Dialogue RFPAward-Winning BAFOs Transform Alberta Tendering
This article by Paul Emanuelli was previously published in the December 2013 edition of Purchasing b2b magazine.
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As noted by Lethbridge Procurement Manager Craig Milleyduring his presentation at the St. John’s conference,Lethbridge’s senior leadership was all too aware of thenegative results flowing out of an audit of the City ofCalgary’s procurement operations in 2009 and 2010. To theircredit, the Lethbridge leadership team decided to adoptproactive measures to avoid becoming another Albertamunicipal case study.
Lethbridge Leverages the Dialogue RFPProactive Governance
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The journey that led to the Dialogue RFP began with anassessment of Lethbridge’s procurement practices and withthe realization that its current suite of inflexible, high-risktendering formats was in need of a significant overhaul.
As Milley noted, fixed-bid tendering was resulting insignificant performance issues and post-award costincreases. Recognizing that the problem presented anopportunity, the City’s solution was to implement moreflexible tendering formats.
Lethbridge Leverages the Dialogue RFPLegal Review Leads to Procurement Playbook
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This decision was supported by an independent legal reviewof the City’s procurement practices, which includedrecommendations on how to deploy a suite of flexible, low-risk tendering formats and integrate that deployment into anorganizational governance framework.
That deployment included the use of a simplified Request forQuotation format for construction projects. The RFQoperated under traditional contract law rules instead of thefixed-bid tender law rules that generate most of thetendering lawsuits in the construction industry.
Lethbridge Leverages the Dialogue RFPUsing RFQs
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Another tool in the City’s revamped tendering toolkit was theDialogue RFP, with its use of short-listing, dialogue and abest-and-final-offer process. As with the simplified RFQ, theDialogue RFP operates under traditional contract law,enabling the post-bid discussions that facilitate theclarification of contract responsibilities before the contract isawarded.
Lethbridge Leverages the Dialogue RFPTwo-Staged NRFPs
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Milley’s team had hoped that this would reduce theperformance issues and cost overruns associated with fixed-bid no dialogue tendering, and the Dialogue RFP deliveredon that promise. As noted in Lethbridge’s award submission,the City deployed the Dialogue RFP on two high-profileprojects:• a $40 million project for a community ice centre with twin
hockey rinks and curling facility• a $26 million project for the renovation and expansion of
police headquarters
Lethbridge Leverages the Dialogue RFPHigh-Profile Projects
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In both of these projects, Lethbridge leveraged the flexibilityafforded by the Dialogue RFP. It engaged in concurrentdiscussions with the short-listed finalists to better refineproject details at the critical pre-award design stage.According to Milley, this concurrent dialogue helped ensurethat project objectives were understood by all parties, thatproject risks were mitigated and that competitive tensionremained in the process prior to contract award. In his St.John’s address, Milley was careful to note that once thetendering format overhaul was completed, the Dialogue RFPwas successfully implemented using internal staff resources.
Lethbridge Leverages the Dialogue RFPUsing Internal Resources
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While achieving significant savings – over $500 000 in post-bid reductions to date and counting – the City was also ableto avoid the large transactional costs commonly associatedwith using external advisors in complexprojects. Furthermore, to counter the fear of pre-awarddelays, Milley statistically recorded how the Dialogue RFPled to much faster contract awards when compared to thetwo-staged prequalification-invitational bid processcommonly used in similar projects.
Lethbridge Leverages the Dialogue RFPTracking Statistics on Faster Procurements
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The significant measurable benefits attributable to theDialogue RFP format support its broader deployment. AsMilley noted, the Lethbridge story can serve as a blueprintfor implementing the format across other public sectorinstitutions.
Lethbridge Leverages the Dialogue RFPA Blueprint for Better Procurement
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Those who are alive to industry trends know that theLethbridge story reflects a movement that reaches wellbeyond southern Alberta. In fact, public and private sectorinstitutions in all parts of Canada are adopting flexibletendering formats to mitigate risk, increase flexibility andbetter serve their institutions. With the Lethbridge storyadding the latest chapter in the evaluation of advancedtendering practices, it’s only a matter of time before flexibleformats become the industry standard across all purchasinginstitutions.
Lethbridge Leverages the Dialogue RFPThe Emerging Industry Standard
Cross-Canada Survey
BC adopts JSP BAFO NRPs in early 2000s.
Manitoba runs RFP to design and implement NRFPs in 2014.
Increasing NRFP adoption in Manitoba agency and broader public sector since 2012.
Widespread NRFP adoption in Alberta municipal sector since 2011.
NRFP test pilot by Ontario government in 2006, formal recognition in subsequent updates of MBC and BPS Directives.
Widespread NRFP adoption in Ontario agency sector and broader public sector since 2009.
2014 New Brunswick regulations enable formal NRFP deployment as part coordinated regional efforts with Nova Scotia.
Canadian Public Sector NRFP RankingsJurisdiction Score and
ForecastAnalysis
1. Atlantic Canada 8.0Positive
Atlantic Canada tops the table thanks to strong senior‐level government efforts in New Brunswick and Nova Scotia, which led to official adoption across the region.
2. Alberta 7.0 Positive
Led by widespread grassroots adoption in its municipal sector and top‐down implementation in its health sector, Alberta still needs provincial support to rank higher.
3. Ontario Agencies/BPS 6.5Positive
Ontario’s agency and BPS sectors saw early local adoption, which sparked high overall adoption rates, but more municipal momentum will be required to overtake Alberta.
4. Manitoba 6.0Neutral
Strong leadership by the provincial government resulted in good adoption at the provincial and agency levels but greater efforts are needed in the broader public sector.
5. Federal Crown Corps. 5.0Positive
While Federal Crown Corporations remain divided between early innovators and late adopters, the overall momentum remains positive for future expansion.
4. British Columbia 5.0Neutral
Early provincial innovation inspired widespread adoption in the agency and university sectors and created momentum at the municipal and school board levels; however, more top‐down support from the province will be required for BC to rise in the rankings.
7. Arctic 2.0Positive
While progress to date remains modest, early signs of innovation at the territorial levels puts the overall forecast in the positive range for future NRFP expansion.
8. Saskatchewan 1.0Positive
Saskatchewan also has high potential for a complete turnaround through simultaneous top‐down and grassroots deployments.
9. Federal Government 1.0Positive
The formal recognition of NRFPs in the CFTA is part of a broader move by the federal government to adopt international standards under the CETA. This creates a once‐in‐a‐generation opportunity to advance the NRFP innovation agenda at the federal level.
10. Ontario Government 0.5Negative
While it formally recognized NRFPs in its directives years ago, Ontario’s provincial government has failed to make any meaningful deployment efforts. Only strong top‐down leadership will help it break free from central government inertia.
Paul Emanuelli © 2017
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Breaking Trends in NRFPs2017 Purchasing B2b Legal Trends Article
http://www.purchasingb2b.ca/features/procurement-law-trends/
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Breaking Trends in NRFPs“Rank and Run” RFPs Giving Ground to Dialogue RFPs
In a recent interview for a feature article by Purchasing B2Beditor Michael Power on Procurement Law Trends, I notedthat the use of negotiated RFPs has reached an irreversibletipping point across the Canadian public sector, with one-stage “rank and run” negotiated RFPs giving way in recentyears to an increasing number of two-stage or even multi-stage “dialogue” RFPs. These multi-stage negotiatedRFPs are becoming particularly common with IT acquisitionsand other complex projects where project teams requiremore sophisticated evaluation formats than a typical one-shot paper-based evaluation.
Article by Paul Emanuelli on the Procurement Office Blog at:http://procurementoffice.com/breaking-trends-in-nrfps/
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Breaking Trends in NRFPsComplex Projects Require Interactive Evaluations
As I’m seeing with increasing frequency in my more complexprojects, evaluators often require an interactive evaluationstage with short-listed finalists. After providing activedemonstrations and receiving evaluator feedback,proponents are in a better position to refine their solutionswhen submitting their final proposals. Evaluators are then ina better position to make informed evaluation decisionsbefore they award a contract. This helps expedite finalnegotiations and increases the chances of project success.
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Breaking Trends in NRFPsCity of Toronto Launches Dialogue NRFP
http://www.cp24.com/news/city-seeks-new-system-for-rec-program-registrations-1.3309750?
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Breaking Trends in NRFPsMayor Announces NRFP Process
For an example of this growing trend, see CP24’s coverageof Toronto Mayor John Tory’s recent news conference,where the Mayor announced that Toronto will be replacing itsoutdated recreational programs registration system using anegotiated RFP that will enable staff to select “the bestavailable technology” for the new citywide system:
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Breaking Trends in NRFPsReplacing Old System
The city is kicking off the procurement process to find a replacement forthe archaic online system used to process registrations for city-runrecreation programs. The system that is currently used is about 20-year-old and while the city has been able to reduce wait times by boosting itsserver capacity, the process remains a frustrating one for many parents.At a news conference on Friday, Mayor Tory announced that the city haslaunched a negotiable request for proposals process, which he said willallow staff to work with vendors to ensure that the new system utilizes“the best available technology” and can be improved and updated overtime. The hope, Tory said, is to have the new system in place sometimein 2018.
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Breaking Trends in NRFPsExecution Requires Proper Advice and Training
As I noted in the Michael Power interview, procurementdepartments need to “adapt to flexible formats or get left inthe dust” since operational departments with pressingprocurement needs can easily veer “off the grid” and startimprovising with non-compliant procedures if they aren’tgetting proper advice on how to use flexible tenderingformats. Our Procurement Law Update Case of the Yearprovides a recent high-profile example of a failed evaluationprocess using a dialogue RFP and our relatedrecommendations provide some guidelines on how to bettermanage these complex group-based evaluation processes.
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Breaking Trends in NRFPsStrategic Execution
For a deeper look at dialogue RFPs, see our paperson Demystifying Dialogue RFPs and BalancingConfidentiality and Transparency in NRFPs. Whilenegotiated RFPs help enable competitive innovation,employing them requires strategic execution based onproperly informed practices.
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NRFP ImplementationNext Step Checklist
Organizations interested in implementing negotiated RFPsshould take the following seven steps:
1. Adopt treaty-compliant, legally vetted NRFP templates2. Update to NRFP-friendly policies and procedures3. Develop an industry strategy to select the right projects4. Create a rollout plan to control internal deployment5. Implement enhanced evaluation protocols6. Ensure appropriate training, especially on negotiations7. Get launch support from experienced advisors
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Treaty Compliance Rapid Action PlanA Roadmap Forward
With the new Canadian Free Trade Agreement and theCanada-Europe Comprehensive Economic and TradeAgreement taking effect in 2017, the Procurement Office hasdeveloped a Treaty Compliance Rapid Action Plan to helppublic institutions transition to the new trade treaty regime.This plan focuses on: (i) updating tendering templates andprocurement procedures; (ii) offering direct support for high-risk major projects; and (iii) delivering treaty compliancetraining.
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Treaty Compliance Rapid Action PlanTemplate Updates – Upgrade to 3.0 Series
For those institutions that recently updated their templatesbased on our 2.0 series (2015 to the present), we are offering aspot-repair service to quickly incorporate the revisionscontained in our new treaty-compliant 3.0 series. Thoseinstitutions that are either still using our 1.0 series templates(2009-14) or have not yet had their templates updated by ouroffice, should migrate directly to our new 3.0 series.
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Treaty Compliance Rapid Action PlanTemplate Updates: Implement with Orbidder
For all template users, we also recommend a rapid deploymentusing our Orbidder drafting system, since this is the mostefficient route to training your organization on the use of treaty-compliant templates.
Webinar: Orbidder UpdateJoin us for a walk-through of our latest Orbidder updates, functionalities and further expansion. Thinking about taking Orbidder out for a test drive? Here's your chance to get a preview. Want to ensure your RFx documents are treaty-compliant and consistent? Check out how Orbidder can power up your drafting process.
Wednesday November 1, 2017, 1:00 - 2:00 pm EDT
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Treaty Compliance Rapid Action PlanProcurement Procedures – Governance Overhaul
The new trade treaties will require significant updates to youroperating rules and procedures, including new bid solicitationand contract award posting rules, mandatory debriefings withmore detailed disclosure, and a far more extensive bid protestregime for all levels of government.
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Treaty Compliance Rapid Action PlanProcurement Procedures – Governance Overhaul
Those organizations that have worked with us in recent years toupdate their internal procedures are in a good position toachieve compliance with an internal governance spot repair forspecific updates to certain procedures and protocols.
Those organizations that have not updated their procurementpolicies and practices in recent years will likely require a moreextensive overhaul of their procurement procedures.
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Treaty Compliance Rapid Action PlanProcurement Procedures – Take the Test
To get a better picture of how you measure up, please take ourquick Treaty Compliance Test for a free assessment of whereyour organization currently stands in complying with the newtrade treaty requirements.
Treaty Compliance Rapid Action PlanMajor Projects – Risk Mitigation
While major projects are always subject to a higher risk of legalchallenge, the new trade treaty regime, with its stricterstandards and more onerous debriefing and bid protestmechanisms, significantly increases the risk of major projectchallenges for all levels of government.
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Treaty Compliance Rapid Action PlanMajor Projects – Project Hot Launch Services
While you are updating your overall procurement practices,your organization should also be implementing specific duediligence procedures to ensure that its high-risk major projectsreceive special screening for treaty compliance.
Whether you need help drafting your solicitation documents,using negotiated RFP formats under the new trade treatiesrules, or implementing Enhanced Consensus Scoring to bolsteryour debriefing defensibility, please feel free to contact us if youneed project support for your major projects during thistransition period.
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Treaty Compliance Rapid Action PlanTreaty Compliance Training
To better ensure compliance with the new procurement treaties,your organization should be implementing a treaty awarenessprogram to train staff on the new treaty rules. Our Live OnlineLearning program includes the new Canadian Law Series, witha specific Treaty Compliance stream featuring four 90-minutemodules that will help bring your team up to speed on the newtrade treaty rules. Please contact us today for more informationor to book your online training sessions.
Upcoming Webinars: Debunking Misconceptions About Fairness AdvisorsWhile more and more public institutions are turning to fairnessadvisors for major projects, this is no guarantee of immunity fromheadline hazards, audit scrutiny, legal challenge or project failure.In fact, if not properly managed, fairness advisors can increaseyour project risks. This webinar will debunk some commonindustry misconceptions about using fairness advisors and offerpractical guidelines for properly selecting and integrating theminto your overall project governance structure.
Wednesday October 25, 2017, 1:00 - 2:00 pm EDT
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Upcoming Webinars: Orbidder Update
Join us for a walk-through of our latest Orbidder updates,functionalities and further expansion. Thinking about takingOrbidder out for a test drive? Here's your chance to get apreview. Want to ensure your RFx documents are treaty-compliant and consistent? Check out how Orbidder can power upyour drafting process.
Wednesday November 1, 2017, 1:00 - 2:00 pm EDT
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Upcoming Webinars: Owning Up to Your Major Construction Projects
When it comes to public procurement, major construction projects are one ofthe highest risk areas for bid disputes, cost overruns and performance delays.This webinar will provide guidelines to help public sector owners plan theirconstruction projects by considering project complexity, contract managementburdens, and incentives for design innovation, cost savings and timelycompletion. This presentation will also highlight the key factors for selectingbetween the stipulated price, cost-plus, unit price, construction management,design-build and integrated project delivery models, along withrecommendations for aligning those different contract models with theappropriate front-end tendering format. While focusing on construction industrypractices, this presentation will offer planning guidelines useful for all majorproject teams who want to meet their objectives on time, on budget and by therules.
November 15, 2017, 1:00 - 2:00 pm EDT
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www.procurementoffice.com
For more information please contact:
Paul EmanuelliManaging Director and General Counsel
Procurement [email protected]
416‐700‐8528
Marilyn BrownSenior Counsel
Procurement [email protected]
416‐700‐8531
Heather BakerSenior Procurement Advisor
Procurement [email protected]
416‐700‐8535
Julia MillsProcurement Assistant and Communications Specialist
Procurement [email protected]
416‐700‐8530