Many of the issues that I deal with on a weekly basis, that arise with contractors and municipal staff, are directly related to poor communication skills. Poor communication within the contracting process can occur in many different ways.
In past columns, I have talked about the fact that poorly written specifications give rise to disputes because they fail to communicate clearly the municipality’s requirements and concerns. In my opinion, specifications must communicate a settled message, defining clearly the kind of goods or services that the municipality is seeking to purchase; the uses to which goods will be put (this is necessary in order to obtain the benefit of the implied warranty of fitness for purpose under the "Sale of Goods Act"); the date on which goods or services must be supplied, or for an ongoing project, the date when the project must be finished. Other special needs must be made clear to the other party.
Poor communication often results when too many people are involved on behalf of one or both of the parties in relation to the negotiation of the final terms of the contract. When meetings do take place at the municipality with contractors the solution can be made easier. To solve any confusion, there needs to be a designated buyer who is expressly identified as such in the RFP or tender, documentation, who is exclusively responsible for presenting the organization’s position to the other party. In many municipalities, this representative is now the designated buyer for the purposes of the tender or the RFP. There is much to be said for a standardized approach. Since such buyers are more familiar with the process requirements for municipal procurement, it is likely that better records will be maintained of the communications that are exchanged. In relation to any technical inquiry, the buyer likely will need to obtain instructions from the client department. This allows the client department staff an opportunity to reflect on the implications of a request before responding.
In order to help the communication process within the construction industry many municipalities have worked on an internal dispute resolution process. Some municipalities have gone beyond debriefing unsuccessful contractors, to the point of creating their own internal resolution mechanism. Generally, the internal protest mechanism is provided in lieu of the so-called "contract A” remedy under the common law of tender.
In other words, the internal procedure is intended to be exhaustive. One advantage of this approach is that it operates considerably faster than would be possible with any outside dispute resolution process, whether in the nature of mediation, arbitration or litigation. Thus the protest procedure has a minimal impact upon the ongoing operation of the municipality. On the other hand, it offers a measure of reasonable protection to contractors, who might be discouraged from bidding for a municipal contract, if their "contract A" rights were completely extinguished.
One of the big issues facing municipalities with the construction industry, when it comes to communication, is trust. I have talked to many contractors over the years that tell me they don’t even attend debriefs anymore.
Municipalities need to do a better job when it comes to explaining to contractors why they didn’t score points in specific areas on RFP’s. This needs to be done in a way that helps the contractors bid on future contracts. The entire idea of the communication process on debriefs to contractors is to make sure they don’t make the same mistakes on the next RFP. Helping contractors through better communication to understand the evaluation process will help both the bidders and the municipality on future projects.
Stephen Bauld is a government procurement expert and can be reached at swbauld@purchasingci.com. Some of his columns may contain excerpts from The Municipal Procurement Handbook published by Butterworths.
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