Proposed procurement policy is returned to city officials

After an hour and a half of discussion at Monday night’s city council meeting, it was back to the drawing board for the proposed renewal of the city’s procurement policy.

While senior city staff explained the intent of the new policy was to shelter council and the city from potential lawsuits arising out of contract law, members of council remained unconvinced.

While senior city staff explained how they’ve done their homework with regards to obtaining legal opinions from leading authorities, representatives of the Whitehorse Chamber of Commerce punched holes in the proposed policy.

“We are recommending that council send this draft back to further consultation and examination from legal and practical perspectives and consider deferring the vote until this information is available,” chamber chair Mike Pemberton told council.

“Solid policy options with pros and cons are needed, in addition to the rationale that this recommended policy should be accepted.”

Council voted unanimously to send the proposed policy back to administration for another look at it. In a rare move, council invited representatives of the chamber to participate in the discussion, after they’d already made their presentations at the outset of the meeting.

“I am very happy with where we ended up,” Pemberton said in an interview afterwards. “It is important that we collaborate a little closer.

“I am proud of council and the committee and what they did to bring us to the table.”

Presentations by Pemberton and other chamber representatives at the onset suggested there are some fundamental problems with the proposed procurement policy.

Pemberton said the chamber would like to see evidence to substantiate the level of incentives the policy proposes to promote local preference, as the numbers seem low.

The city’s definition of a local business is weak, and is not likely to result in support for local business, he said.

Pemberton said the chamber is concerned that the policy removes city council from the procurement process altogether and instead puts it entirely in the hands of city administrators.

City administration, he said, claims the 2011 procurement policy exposes council to risk but there is no evidence provided to support administration’s position.

City staff, however, explained the area of contract law can be finicky and troublesome if policies and procedures are not locked down.

Undue influence in the process by elected representatives can get a municipality into hot water rather quickly, they suggested.
Lindsay Schneider, the city’s manager of financial services, told council that last year’s situation that arose from the proposal to beautify Alexander Street is a perfect example.

After the bids were received and administration had recommended a contract award, council pulled the plug on the project.

Area residents appeared before council to voice their opposition to more street improvements. The area was already marred by unwanted and unsavoury activity, and putting in more benches and improvements would only invite more unwanted activity, they told council.

The financial manager told council Monday night that had it not been for some positive discussions between city staff and the winning landscaping company, the city could have found itself in legal trouble.

Schneider and Catherine Constable, the city’s manager of legislative services, told council that administration has done its homework researching the legal authorities; they’ve talked to the leading experts in the field.

One expert sent a book of legal examples, and it’s a foot thick, Schneider explained.

They emphasized council’s involvement would be in establishing the annual budget and setting budget amounts for projects.

Every two months, the elected representatives would receive a report on upcoming tender calls or requests for proposals before they went out, and would have the opportunity to comment then, they said.

Twice a year, they explained, council would receive a report on contracts awarded and how things were going.
Coun. Dan Boyd said waiting several months to receive a report of a problem contract is a long time.

And he turned around the Alexander Street example. It was through the intervention of concerned citizens that council cancelled the contract, and that’s the way it is supposed to work, he suggested.

Boyd said council needs to remain involved.

The councillor also suggested the leading law in the case of contract law lies in a 1981 decision by the Supreme Court of Canada. It’s not as though something new has suddenly sprung up, because it hasn’t, he said.

It was suggested the policy as proposed would put un-elected city officials in charge of matters and money that should remain under the control of the mayor and councillors.

“My concern is that the policy moves responsibility for all decision-making on procurement contracting from council to the un-elected, and non-accountable city administration,” Kirk Cameron, the chamber’s vice-chair, told council.

The former city councillor suggested the citizens of Whitehorse are engaged with matters that could affect the future of the city.

Imagine, for instance, there was a proposal for a contract to begin investigating the Long Lake area as a future residential development for Whitehorse, Cameron said.

“They will want to be heard, and they will want you to do something about it, not say this is out of our hands resting with administration,” Cameron said.

He said he realizes council would be involved in approving projects through the annual budget process.

But the budget contains many items, and there is no way individual projects could be discussed as thoroughly as they should be, he said.

“This is not the definition of transparent and accountable government.”