Procurement scandals are often in the press, and in the past few years there have been considerable high-profile reports. Whether bidding in or running a procurement process, avoid being a headline on the front page news. Topics include: - Conflict of interest - Conducting a fair process - Clarification Q’s and A’s - Sole Sourcing Contracts - Selecting a Winning Bidder Gowling WLG’s “Risk to Reward” series is designed to address the most important legal, regulatory and corporate risks facing your organization. With 18 offices around the world, Gowling WLG is uniquely positioned to provide risk advisory services wherever your business takes you. Our legal teams are in tune with your world, your sector and your goals. Join us for one or all of the presentations in this series to transform the risks you face into rewards. Learn more: gowlingwlg.com/risktoreward

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6 October 2016
RISK TO REWARD
SEMINAR SERIES:
GRAHAM RAGANPHUONG T.V. NGO
STEPHANIE PEARCE
PROCUREMENT:
FUNDAMENTALS TO
FORWARD THINKING

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OVERVIEW
• Introduction to Procurement
Fundamentals
• Perspective: Bidder vs. Owner
– Conflict of Interest
– Conducting a Fair Process
– Clarification of Q’s and A’s
– Sole Sourcing Contracts
– Selecting a Winning Bidder

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3
OWNER
BIDDER

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Conflict of
Interest
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Conflict of Interest

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Definition of Conflict of Interest
• “Conflict of Interest” is a situation in which
financial or other personal considerations have the
potential to compromise or bias professional
judgment and objectivity.
• An “Apparent Conflict of Interest” is one in which
a reasonable person would think that the
professional’s judgment is likely to be compromised.

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Owner
• Take all possible steps to prevent and resolve any real,
apparent or potential conflicts of interest.
• Proactive disclosure of conflict is key
• A bidder or prospective bidder may need to be
disqualified in order to preserve the integrity of a
procurement process
• Important to clearly define the circumstances that may
constitute a conflict of interest in order to ensure that a
decision to disqualify is transparent and defensible

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Bidder
• Internal compliance – ensure that all stakeholders are
aware of and in compliance with requirements to avoid
COIs
• Proactive disclosure of conflict is key – complete and
accurate completion of COI declarations or certifications
• Appropriate Communications- exercise caution during
the procurement process

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Conducting a
Fair Process
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-

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Owner
• Fairness, openness and transparency
• Internal procurement polices
• Common Law Principles
– Duty of good faith
– Duty to disclose material information
– Duty to disclose the rated criteria
– Tender deadlines are to be strictly enforced
– Duty to only accept compliant bids

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Bidder
• Common Law Principles
– Duty of good faith
– Duty to disclose material information
– Duty to disclose the rated criteria
– Tender deadlines are to be strictly enforced
– Duty to accept only compliant bids
– Duty of the bidder to honour its tender

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Clarification of
Qs and As
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Clarification of Qs and As

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Inquiry Process
• The inquiry process is often the best opportunity
in the bid process to dialogue with the
soliciting party
• Bidders can seek clarification or object to a
requirement
• Questions and answers get incorporated into
the RFP as amendments, and are provided to
all bidders

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Owner
• Ensure the information provided
is not misleading
• Questions and answers should be
provided to all bidders
• Answers should be incorporated
into RFP as amendments

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Bidder
• Don’t miss the boat – If you have a
question, ask!
• Act quickly – Don’t “wait and see”
– It is incumbent upon the bidder to seek clarification or object to
the requirement
– Bidder bears the onus to seek clarification before submitting a
bid if they believe the wording is unclear or ambiguous
• Be mindful of mandatory requirements

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Sole Sourcing
Contracts
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Sole Sourcing Contracts

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Sole Sourcing Contracts
• Less competitive procurement process where government
entity able to contact a sole or single supplier or a number of
suppliers individually
• If under the CITT jurisdiction
– Trade agreements apply
– Sole sourcing can be legally challenged
• Public entities outside of CITT jurisdiction/private entities:
– Can self-impose policies against sole-sourcing
– No common law legal duty to engage in open and
competitive procurement processes

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Owner
• Public vs. private
• Exception to competition – onus is on the
owner to show this method is appropriate
• Expediency or convenience won’t cut it
• Increased risk

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Bidder
• Selected as sole source
• Objecting to selection of a sole sourcing
provider

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Selecting a
Winning
Bidder
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Owner
• Follow the RFP
• Follow the process
• Minimize ambiguous requirements
• Do not evaluate undisclosed criteria
• Award to winning bidder
• Record Keeping

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Bidder
• Ensure compliance with all mandatory
requirements
• Challenging after the selection
• Forum and process
• Evidentiary issues

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QUESTIONS?
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CONTACT US
Stephanie Pearce
Partner
stephanie.pearce@gowlingwlg.com
613-783-8842
Phuong T.V. Ngo
Partner
phuong.ngo@gowlingwlg.com
613-786-0236
Graham Ragan
Partner
graham.ragan@gowlingwlg.com
613-786-8699
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Limited, an English Company Limited by Guarantee, and their respective affiliates. Each member
and affiliate is an autonomous and independent entity. Gowling WLG International Limited promotes,
facilitates and coordinates the activities of its members but does not itself provide services to clients.
Our structure is explained in more detail at gowlingwlg.com/legal

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