Do As I Say! Not As I Do!

As the vast majority of our members know, the OGCA is very active in ensuring that all municipalities are held to proper procurement procedures and that all tenders are fair and balanced to ensure the largest number of bidders are attracted and participate, and that the provisions in the agreements do not adversely affect our general contractors.

So why am I raising this point today if it is general knowledge? Because I wanted to note that if the OGCA did not act as the construction industry’s “watchdog” for these municipalities, they may be repeatedly subverting proper procurement procedures when they saw fit.

Let me explain with an interesting story and the continuous struggle that the OGCA faces to ensure all jurisdictions are acting accordingly and playing by the rules.

To ensure that we do not inadvertently bias anyone, we will not use the municipality's actual name. They will be called Municipality X.

To establish a baseline for this example, let us note that Municipality X only wants general contractors who have obtained COR^TM certification for all of their projects and that Municipality X not only initiated this requirement, but has adhered to it for a number of years.

To begin, a number of our contractors communicated to the OGCA that Municipality X has somehow changed the procurement standards on a certain project. The OGCA is advised that Municipality X has apparently contracted out to a third-party project and development services provider and may have actually lowered the health and safety component on the tender in question. Additionally, the OGCA general contractors who are COR^TM certified have been advised that they will not be able to bid this tender.

The OGCA drafts a letter to Municipality X and writes the letter in such a way as to request clarification on what the OGCA believes must be some sort of misunderstanding or miscommunication, especially with respect to a longstanding health and safety requirement such as COR^TM, and to barring COR^TM certified OGCA contractors from bidding.

A few days later, Municipality X responds, but the response is confusing and perplexing to the OGCA. In their explanation and rationale, they openly note that they made a conscious decision to lower the health and safety requirement of COR^TM on this tender.

They noted that, “while we understand that Municipality X through its direct procurement has required COR^TM Certified for projects of this size since (specified date), the potential General Contractors that may ultimately do the construction for this tender do not bid on Municipality X work as part of their normal operations. The change was done to open up Municipality X’s construction opportunities to those General Contractors who are currently going through the Certification process and to ensure that there is an incentive for General Contractors to obtain their COR™ Registration and ultimately their Certification.”

In reading this and more of the explanations provided by Municipality X, it is clear that this jurisdiction is attempting to manipulate the established procurement procedures so that they may grant this tender to a selected contractor who has not invested the time and energy into obtaining the main requirement that Municipality X initially required for health and safety as a condition of bidding.

The OGCA will not stand for the bending of these procurement rules, especially since Municipality X was the one who set those rules in the first place!

The OGCA writes a response letter to Municipality X and denotes the following positions:

1. The OGCA raises the concern that Municipality X believes that by contracting out to a third-party service provider, that they are somehow exempt from their own procurement procedures, especially with respect to the health and safety requirements of all General Contractors being COR^TM or COR^TM equivalent to bid Municipality X projects. The act of subcontracting work to a third-party service provider does not allow Municipality X to create a “loophole” in order to skirt their established health and safety obligations.
2. The OGCA finds this action of skirting the requirements of this tender perplexing, since under no circumstances would any General Contractor employed by Municipality X have the option, nor choose to contract around the COR^TM requirement, but here the evidence is providing that Municipality X is attempting to do exactly that.
3. The OGCA has multiple General Contractors currently capable of bidding and successfully completing this exact type of project and who are fully COR^TM certified, but Municipality X consciously lowered this requirement and then did not allow fully COR^TM certified General Contractors the opportunity to bid this work. What was your rationale for this?
4. The OGCA finds your explanations to be paltry at best and does not agree with the position of Municipality X to lower an established health and safety criteria that was set for similar projects commencing in (specified date). Additionally, the actions of the Municipality X on this procurement raises further questions regarding what other procurement protocols does Municipality X dismiss as easily as this and how often?

So now the letter is submitted to Municipality X and the OGCA is waiting for some corrective action to rectify this ridiculous initial position taken by Municipality X. Interestingly enough, since this action, every single tender being tabled by Municipality X is being reviewed through an incredibly critical lens.

The OGCA now has evidence and an admission that Municipality X made a willing decision to lower the health and safety requirements of COR^TM. If they are so willing to not only circumvent their own health and safety requirements and to openly proclaim that they did so because of a timing issue, what other procurement protocols and procedures could they be bending or breaking.

Stay tuned for more trials and tribulations from the chronicles of “Do As I Say! Not As I Do!!”

Should anyone want to discuss the specifics of Municipality X and this tender or if you require any assistance from the OGCA, please contact me directly at giovanni@ogca.ca or via phone at 905.671.3969.