Public Works suspension policy needs more consultation
A one-month consultation period is not enough for stakeholders to study and comment on policy.
The CBA’s Anti-Corruption Team has 18 recommendations to make on the federal government’s draft revised Ineligibility and Suspension Policy for public works contractors.
But its first comment may be its most important: that a one-month consultation period didn’t give stakeholders nearly enough time to study and comment on the policy, which is set to be finalized in early 2019.
“Based on our general awareness and discussions with clients who are suppliers to the federal government, we believe the consultation was not long enough or sufficiently publicized to gather meaningful input from federal government contractors and other stakeholders,” the team says in its submission. “The proposed changes to the draft policy are substantial and the government would benefit from a thorough consultation more likely to identify unintended adverse consequences.”
While a number of the recommendations have to do with clarifying language and definitions of terms, the team also expresses concerns about minimum response times, and allowances for flexibility in exceptional circumstances.
The team is also concerned that under new terms in the draft policy companies can be debarred from applying for government contracts over relatively minor infractions that could occur as part of day-to-day operations, such as failing to submit a declaration form before importing an engine.
“To the extent the scope of debarment offences moves away from offences directly relevant to government contracting, the rationale for debarment may become less clear,” the team writes. “While the goal is laudable, using debarment to achieve other social, economic and environmental policy objectives could create uncertainty and inadvertently limit the number of companies prepared to bid on government contracts.”
It also notes that the draft policy would add punishments on top of penalties already assessed by the courts, which might be “unrelated to the seriousness of the offence giving rise to the conviction.”
The team also raises questions of solicitor-client privilege, saying that the Integrity Regime must be held to the same standard as that set out by the Supreme Court for solicitor-client privilege. It recommends removing the reference to Public Works and Government Services Canada’s ability to request “legal opinions” from a supplier, and encourages “consideration of a statutory non-waiver provision and clear restrictions on sharing this information beyond those involved in the eligibility determination process.”