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HomeMy WebLinkAboutTR-63-94 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON REPORT Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE File # Date: MONDAY, JULY 18, 1994 Res. # Report#: TR-63-94 File #: By-Law# Subject: TENDERING - LOCAL PREFERENCE Recommendations: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1 . THAT Report TR-63-94 be received for information. BACKGROUND AND C01-MNT: 1.0 At a meeting held on September 25, 1989, Council approved the following recommendation (#GPA-676-89) ; "THAT Staff be directed to investigate and reassess the tendering process and prepare a report wherein preference is given to local suppliers" . Due to the Municipality's involvement in certain legal matters, it was necessary to delay this report until such time as the outstanding issues were resolved. 1. 1 This issue is one which the Municipality of Clarington Council has had to deal with on numerous occasions, and which is not addressed in our existing Purchasing Policy. However, this issue has been addressed in the revised Purchasing By-law as identified in Report #TR-64-94 . This report has been prepared outlining the pro's and con's of including such a policy, as well as the alternatives available to the Municipality to encourage local participation in the bidding process . Also included are articles and correspondence from various agencies expressing their opinion on this subject. PAPER E �eE iH IS PRIM-R-CLEDPA PER REPORT NO. : TR-63-94 PAGE 2 TENDERING - LOCAL PREFERENCE 1.2 "Purchasing today is broadly designed as that business activity directed to the procurement of the materials, supplies, tools, equipment, facilities and services required for the maintenance, operation and productive endeavour of the organizational unit. It is the prime function of purchasing to secure such requirements at the lowest ultimate cost consistent with prevailing economic conditions and the appropriate standards of quality and continuity of service while establishing and maintaining a reputation for fairness and integrity" ( 1 - The Purchasing Job: Dimensions and Trends, S.D. , Zemansky, American Management Association, Bulletin Number 11, 1961) . 1.3 "The very essence of governmental purchasing is to obtain competitive bidding, on either a formal or informal basis, in a market force free of artificial restraints" (2 - Repeal of "In-State Preference" , Laws on Public Procurement, U.S. Department of Justice, 1971) . The purpose of advertising requirements in the newspaper is to encourage participation by all qualified vendors . 1.4 Often times, it is difficult to get vendors to bid on Municipal projects . They are fearful that (a) payments will be slow and (b) paperwork requirements or excessive specifications will outweigh any potential benefits . Because of these problems governmental agencies often pay much higher prices for supplies, services and equipment than private industry. j 2 . 0 ADVANTAGE OF LOCAL PREFERENCE 2 . 1 Promotes good-will between Municipality and the local i businesses. 2 .2 May help to keep certain tax dollars within the Municipality thereby, possibly creating opportunity for increased local employment. I REPORT NO. : TR-63-94 PAGE 3 TENDERING - LOCAL PREFERENCE 3 .0 DISADVANTAGES OF LOCAL PREFERENCE 3 . 1 Local preference would directly cause a substantial increase in the expenditure of public funds by discouraging competition from outside sources. 3 .2 Taxpayers would be required to pay more taxes for the benefit of local businesses . 3 . 3 Higher property taxes would discourage new businesses from locating to the Municipality of Clarington. 3 .4 Other governmental agencies may take reciprocal actions, hereby creating a competitive disadvantage for Municipality of Clarington firms . If a contractor's market is confined to its own locality because everyone else has preferential policies, it will soon become inefficient and perhaps bankrupt. 3 .5 The probability of collusion increases greatly. A local vendor may quote a higher price than he otherwise would. 3 .6 May result in lower subsidy grants from the Ministry of Transportation and Communications as the subsidy is restricted to that which would have been paid had the low tender been accepted. 3 . 7 Unless an exception is granted, would eliminate participation by the Municipality of Clarington in Co-operative purchases with other public purchasing groups. 4 . 0 PROBLEMS IN IMPLEMENTATION OF LOCAL PREFERENCE POLICY 4 . 1 Establish a definition of a "Local Vendor" ie. : The Municipality of Clarington or the Regional Municipality of Durham. 4 .2 Must the "Local Vendor" own or rent property in the Municipality of Clarington. 4 . 3 Minimum requirements for length of time a "Local Vendor" has been located in the defined area. 4 .4 Do branch offices qualify as "Local Vendors"? 4 .5 Does a post office box qualify a company as a "Local Vendor"? I REPORT NO. : TR-63-94 PAGE 4 TENDERING - LOCAL PREFERENCE 4 . 6 Should the ownership of' a business be local to qualify it as a "Local Vendor"? 4 . 7 Are businesses operated from the Municipality of Clarington residences considered "Local Vendors"? Does the home of a sales representative qualify as a "Local Vendor" if the correspondence goes there? 4 . 8 Should the vendor be able to provide the warehouse function as well as the sales function locally to be certified as a "Local Vendor"? 4 . 9 A percentage differential must be established and adhered to, ie. : If percentage differential is set at five percent (5%) , what if the difference is five point one percent (5. 1%) ? 5 . 0 CONCERNS FROM OUTSIDE AGENCIES 5. 1 As indicated under the disadvantages, Item #3. 6, the Ministry of Transportation and Communications restricts their subsidy to that which would have been paid, had the low tender been accepted. See Schedule "A" which outlines their position on the awarding of tenders . 5 .2 In 1987, the National Institute of Governmental Purchasing Inc. , passed a resolution that opposes all types of preference policies. See copy of resolution attached, marked Schedule 5. 3 The Canadian Construction Association is adamant in their position against preference policies and is in fact stepping up their attack on Provinces and Municipalities that discriminate against bids from outside contractors. A list of such groups will be circulated to all Canadian Construction Association members and will be also given to the media. See the attached articles from the Daily Commercial News, marked Schedule "C" and "D" . 5.4 The attached article from Governmental Purchasing, marked Schedule "E" , entitled "Preference Is Not Preferred" offers the opinion of various groups and agencies . I REPORT NO. : TR-63-94 PAGE 5 TENDERING - LOCAL PREFERENCE 5.5 The British Columbia Court of Appeal recently upheld a lower court ruling rejecting the practice by Municipalities and other tender callers of not awarding contracts to the lowest qualified bidder unless specifically stated in the tender call. See attached Bulletin from the Purchasing Management Association of Canada, marked Schedule "F" . 5 . 6 The Ontario Sewer and Watermain Contractors have approached the Province for assistance in eliminating local preference in the awarding of contracts. See attached Bulletin from Ontario Sewer and Watermain Contractors dated January 18, 1990 and article from Daily Commercial News dated February 19, 1993, marked Schedules "G" and "H" respectively. 5 . 7 The Federal and Provincial Governments have agreed in principal to remove most Provincial trade barriers. A Local Preference Policy is in effect a Municipal trade barrier. 6 . 0 ALTERNATIVE 6 . 1 As an alternative to a Local Preference policy, the Municipality of Clarington is able to increase participation in the bidding process by local businesses . Suggested means are as follows: 6 .2 Search out local firms who offer products and/or services which the Municipality may purchase. 6 . 3 Meet with the firms, officials and explain the. Municipalities interest in doing business with them. 6 .4 Explain the rules of the game in the vigorous competition environment. 6 .5 Encourage the officials of the firms to compete with their bids . j 6 .6 Educate the firms with respect to bonding and insurance requirements and how to obtain them. 6 .7 Let them know the fairness and objectivity practiced by the Municipality in making the awards for bids . REPORT NO. : TR-63-94 PAGE 6 TENDERING - LOCAL PREFERENCE 7 . 0 OTHER MUNICIPALITIES 7 . 1 Identified on Schedule "C" , attached to Report #TR-63-94 are the policies of the area Municipalities with respect to Local Preference. In summary, no area Municipality has a policy which provides outright local preference. 8. 0 SUMMARY 8. 1 The local vendor already has numerous advantages due to their geographical location. Examples: 8.2 Local vendors are sometimes better equipped to provide "service after the sale" that may be required for some commodities . 8 . 3 Local vendors are usually first aware of new projects that provide them with the opportunity to assist in the specification development. 8.4 Transportation costs of the local bidder are usually less . 8 .5 Advertisements are always published locally. 8 .6 Local vendors are more knowledgeable of local business conditions and requirements . 8 . 7 In accordance with the revised Purchasing By-law, in purchases under $10,000 . 00, three (3) quotations are required wherever possible. In many cases, only local vendors are invited to submit bids . I For purchases exceeding $10,000.00 and up to $25,000. 00, three written quotations are required wherever possible. Once again, as this is a project which is not advertised, the number of bidders located outside the Municipality may be less, and all known local bidders are invited to submit bids. 8 . 8 In summary, the Purchasing Division does not support giving preference to local vendors. It is staff's opinion that all bidders should be treated on a fair and equal basis, and that in an effort to reduce the spending of public funds, competitive bidding must be encouraged. i REPORT NO. : TR-63-94 PAGE 7 TENDERING - LOCAL PREFERENCE 8 . 9 "Since competition is the fundamental cornerstone of the purchasing process, competitive bidding needs to be encouraged to the maximum extent possible. Competition goes a long way toward assuring that the final price is fair and reasonable both to the supplier and to the client" (3 - Public Purchasing and Materials Management General, Canadian Institute of Public Purchasing; The National Institute of Governmental Purchasing, Incorporated, December, 1983) . 8. 10 Staff do however, recommend that as identified in Report #TR- 64-94, the Revised Purchasing By-law, that the following paragraph be added: Paragraph 5 . 1 - Local Preference 5 . 1 Local Preference - If in the determination of the Purchasing Agent, if a competitive market exists and two or more bids are received and are identical in price, provided quality, service and delivery are similar, then priority of acceptance shall be first for a Local Bid, if any, and then for a Regional Bid, if any, otherwise the lowest responsible bid shall be accepted. Respectfully submitted, Reviewed by, VaAl y , I Marano, H.BSc . ,AMCT. , W.H. Stockwell, Treasurer Chief Administrative Officer MM*LB*ld Attachments i i i Ontario — SCHEDULE "A" i Ministry of Transportation and District #6 Communications Municipal Section 5000 Yonge Street Willowdale, Ontario 3 - M2N 6E9 Tel: (416) 224-7456 1987 09 17 L. Kotseff Town of Newcastle RO �4n Terperance Street Bowcnanville, Ontario T �1 1989 L 1C 3A6 TOWN OF NEWCASTLE Dear Sirt PUKHASING DEPARTMENT Re: Awarding of Tenders - "� The advertising of a tender and the subsequent award of a contract results in a very significant transfer of public funds S to the private sector, The manner in which this transfer takes Place, mast not only be done in a formal and open manner, but appear to be so to the public and private sector. It is our experience that when a road authority deviates frrm well established practices in tendering projects and awarding them, that the contracting industry and ultimately the general taxpayer suffers. It is apparent that the lamer the number of bidders- on -a`- " project, the more c0nPetitive bid prices are likely to.be. when an owner acquires a reputation for the�unconventional.>iri"awarding tenders, we have noted a deterioration tin the bidding"Onvirormtent r. and decrease in the number of bidders. The result is rathet regrettable. - I understand Town Council, recently awarded asmajor road construction contract to ether than the low bidder. I.can,4 -- 'sYnpathize with the reasons Council had for making this decision. however the t a n and s In so doing,, , y se Precedent en��.�t;,.el ., :�-� message to contracting' industry' thdt an`unpze;k ab1�F a i ,YT has been added to the process of.acguifing work `i i , 'Ire Ministry takes the approach that ii j >n'spor�s tell-; WI decision rests with the Tofn. We do however discourage this action by restricting our subsidy to that which would haves been -? paid, had the low tender been accepted* i feel compelled to bring his matter to � your attention and would appreciate if your � Council members were made aware of the Ministry's concerns, in ` the hope that the practice of accepting other than the low tender does not became cc mmn practice. Yours truly, : PCG/el P.C. Ginn b.c.c. J.K. Robinson District Municipal Engineer' -`:R, R.L. Hanton Pilo #gsn'I_l n_n1 SCHEDULE "B" NATIONAL INSTITUTE OF GOVERNMENTAL_ PURCHASING, INC. 115 HILIWOOD AVL NUE f All S CH!_:RC H VIRGINIA 22046 • i'Ii{ ', ; ; - :•u, RESOLUTION PREFERENCE WHEREAS, the National Institute of Governmental Purchasing, Inc, advocates the use of the free, open competitive process for public procurement , and WHEREAS, the National Institute of Governmental Purchasing , Inc . supports all efforts to include everyone to participate on. ;a-n, equal basis in this process, and' WHEREAS, the practice of preference laws or regulations results in reduced competition and increased prices; NOW THEREFORE B- l7 R F SOL .'E D c1t Jv of Governmental Purchasing , Inc. is opposed to a.l types of preferencc law and practice and views it as an impedi,nent to cost effective procurement of goods, services and construction in a free enterprise S\'ste7:. A true copy of a Resolution approved by the National Institute of Governmental Purchasing , Inc. 's Board of Directors at a Board Meeting in Arlington, Virginia on March 7 , 1987 . L IS E. ANG R, CP O Executive Vi P esiden and Secretar A Non-Profit Educational and Technical Organization of Governmental Purchasing Agencies FOUNDED IN 1944 i PERFORMANCE PLATFORMS LTD.Lu SALES•RENTAL•SERVICE Commercl*al Lu a -1 aLun �al.OfT- , UFM N (416) 479.3737 '� AMID CONSTRUCTION RECORD VOL. 62, NO. 199 MONDAY, OCTOBER 16, 1989 y"���`'' "� ':. t' `.:u �S .�i a�,, cY nwA•�rs a r .` 11�t..a., + .,�i�""',Fa', ,�1 5t•�G iC„Ca.C""�1 4.' `% r` '., `i"• r,'s. xJ^y?7,t:k s s u a , o :hats nc� .. = �.A ,t..,„,,m#yn,,�dwy!,'7 k. .A «r `fi'y�r?'.(�.'fr''M s( ie�. !,' z a Ea �.Y i•,ti f.. �,r.,t R'l ,l �. S r.M �' x3✓.'a`r�,�y�`�-'j� „�y .Y"rv?�`.�Er�v'z"�":,F�,`'":'x-�Sn:^''"�, :..n,,S;S .�`ra'..��iS°;�`, "' ,���'.'., .,�,�i, 9 +^-�".:1,`'� w':�A,�';Y.y� °��:'r $ �1.. '����v,°k� �A� "�:: L i i ^ y; a. `�y T,>.fi± s�,�. .x �,.. 4;-air; �' �;`a•"ur�xr �..r :� ,� ^r `. w 0: �7r ?` �g.0° f a c�estlist', oncluded`that the origui or source of supply wiEhin 1}1�eIi1JE1 be :8.'&c.— gs r , tQn,�(CiC etatta a °. a a,ra.. a �,:. decldm w11iC1t M �k. P co ro they a.F ,F. �' �'"u ��'. ."-'�. :��aCto,�s�or;.suppiiersu ark selected ion publicly- bi : ON ease a wth re-L githe.� �ged rojects � wi de tracEors hi can P efe enSe� o `o e n' a, r �g 8, h filet;regional $yocittsnna6olLshed,re, ?¢;i'L~� '"..n�; { aII4^'m011eiL'%'::thner" '1 ( �.. ' •' .iz� "'''�'r''*r'"r"' passe a d:: �' ���:� � �a t�,r.. ,,�•.��i►n � aLi$�'��,•w,�r„ •.�,; ? . _,;;, �,,°sr<�t! Mimi o of'hll east ` tind �"th"at r °j ' Ay�; >""s,:� J4�: Bois o �adet. earl ,sell,out•the policyCtlie timXOf Q►eiinitial w Y. favored, ;bacrtes3s v � goal;: sald7 since' "bidvcall'�=theC`A ¢Cpesid�ntaB b Huth° .3'. t! a 's s o eco °,,,N .�M>, "4 � � x cnc j„r cahoor theP aciee� t.pulir�ak:ot,protectionist sen}iinent seems to •6$T ft ocait�sr en hcles are o .: : , . •> `fie orial`bacr e n•7 n;p elf c oftenoghr said' hveniected Atl ntic C da O�ernmen� { a Y n"" Ta w etc Ax1A a""thlS}CA�, bllt?1Juth g,.. -n; gepGt. �can beassurl�sof �tt�seasierfo do business�xin�the I7 S Ethan i�qa said%hem as `ericouc ed b aplenty o'bidder& u�}, ,ab in e ,. yea the efforts of New. illltIIlci 8I1 O ro.V3nce7 >. '.r .." The ~want>Ihe « � P tY r P „� , Brunswl�k,Preaier Frank McI{enna, o has'lieen ., cake and eat it-too 'They:.want We rhave^heardXVery lsttle'of " �,��,n� ga�ta a: > ... ... .th@,coin titiOII 7 aAd'.th8 t... ..}+ .�,s�; w. J'r'"- ,•�wp"oat'11b 1R! etin,g.;�other`,�Atla►tic premiers to to get•.the::, , t to quietly hand the .stantiates,the giving of re[e"rences'Une x the • tiara ' ^ p ' ,rr� F. •:. .gS .. ItiSt-re OYed.. local 5� C , feelin �a � .y ..Y,- } :r -•. a k enotiught-tfiat.;7there.s;`bee Bnt a .CCA;:is ! to>>strllce'baM` „� p° ($contractor s� marketplace is confined to Its=' ,,, P, r � ,ck �his fall, k KpressurebrQrugtt Fto bearey're really£ ot� a awl-locali because.ever- bod :;k> ,mernMc,Iu�sit will be Basked Hto.Identi ;:munici ali nomic meats", f ,_ ""$ ,�k ty 3 y eeps building ties or t re ons,that t1a anti �� z> `P "'" r.`' ' 'rr �t ± "j� '„ fences axouttd'iheIr:territories; we'll end'up.. th;a Ki Ya rePeatedlyuse A CAA task t force that examined tke prpblem , bunch„ot�small'`inefficient f 3,4 nrh.. ka r t i t tis� rN m1+ .f JAMAC SALES * MERKYSUPP SUPPLY ., Distributor For. 100 ea(6 w� nw u� Dow Firestop Products fS&Sri. Now Two Locations Dai'mly News BUILDING SUPPLIES &SPECIALTIES 440 Brimle Rd. #7 26547 MCoodmg efee ma Mrw ep,oeucu,txkk, lumbar,glass 4345 Steeles Ave.W. 665-0016 A V D CON�U�.1 ION RECORD ao<ks, sM D2 es, wallboard„ and other oonatnrdlon materlals SALES WITH SERVICE SINCE 1959 VOL.62, NO. 123 MONDAY,JUNE 26,1989 $1.75 K r NIS•i.. G> , ..�`, .,.rr, "Yt .fi .c vi•�, cr+ i "'t+v.: +?:Y u;C '. .0 �, c� t�c Tlh y ®� got l aacr ` f ,N• r ., .:.as l..i' :i B KEN�$TICKNEYY t%"r h•k',�'4.'•�.-.7�w. •�^yj,: , „y...'r:;tM, Tit, �•r�.�.,. :4.:,..:, .'.a.,i',; 6l„�_:.r�..rr:.;:.i�*`i' .,�:,�. :� . f1N1m1'1o1ji � '' rttbotwke thpx viniil'�verir that Goildfoeds shodld:have a `HALIFAX'(DCxm b chance the °I' any notionof a trul Tfieyrd- � ii�eCOnoi union. Y ymm e > Y n17cion.Ais6Cia5nn(CCA)tarid` oatr ctJb slq�) :fid bt(u 3s'isiJtxiun ' �''l�#4'+ SwV 4 4here�was.lest ttun�two per•eent• cw ti �tfi ;`+tnEetin;with the power commission to suite `�4ca1 �atY � k +l .• blda'MacDonald iald.• Ttx4e i itfi'ai i r(ion ro crrnct lie't.4xY•+ (YdScotla.eailttct whea'iwe iwsrd )1�ut n qx;New Glaser wsmdhon coa +.. 5 Bow awarded tbe'Si.2-mil- r # Sldmg equued foe as drdof!w iPber geneiMia Matron a httle'dffutt hEiti v Scoua Power Commu�on a...+ because';I orlea�Yvat 11 di on7odntca2tYor Iibrxll'ienovatidns fo TrimaC Coitstruetion ' J?ct t an" 'renton :` e4ten�e'r lloeyrn"rerita. ¢,th'Z?'"„” 'f5il Nova' `con6dr.Ho�KeVn,;I.orlei-�d`^ •yk�:" ',u`� d o�.New Glas ovfi°Seoha contiactor althon8h:ad'Ontaiio ihadbr#G 3d2et�v oiil�use kova'Sis>�i mgtenals arid. [ Mnttact:•f .the.Pornt�7lrpper,No.2.atatil y�� 8h 8 'C°"3truct!on Ltd:,of goW althou 1rr H 4.ar r to, ; Sydney adbmitted'a bid$13,000 lower, ibritiy teed a lo�Sertbid In the oihet wa S�Fl-fnilh o'. ,trac�: (, e loa 5�a whs su6t gwNe }iy[a+lea sifela'Ltd Btaidi :.`t1!at this job'kliould'rgo'to'Chsildfads yt�may'.`{{?t y t'''ti.: >`_`'•..Jun,�ngevrttd. the:town clerk, a renovations in New.Glasgotti7 N S. W tdud7dart Tlie second low bidder NarR Onildtonds.LW?tDaft MiChaei:�Atkitt+�ti of;.nd,t 5 :,p �.'t. ys council ..kicked ,cy xew Gtasgow'co4itiactot'alrhbu h e ehntracl > tjy n a' ,f• r. i t (..duecwT, i p�a�tSces l + around;the."(wa•bidi'tor throe'or four do btforn mektn 8 Sydvfttw N.SsYk{ +•�`'• -y tCA;wrocE fl,e`p4�V conim pmtl�L•aItk y` 8 n+�Y c�T S Pat m;a lower ti;d rr • a .x,rat I $i: Power mmrs5l'' e .�^« r,b, '' a fission to. i dECi iottiht,;a_ ': Rlie mahad.tourldfads lctter'pororteodi'1h 'iio;Pretaafci'.faV"lace d +ti�slnsga. 1}k H "The recdiie{itb'�}1hii nd of ifiin tat t)re?nY3riielpnt Mt faI ,,g R g ... �' u cr t „reef=Robert:Cassidy.of Truro--said%m both 8: , thoL'gh'ibilea vyoirlQttisL�fu antial ••war.incirtioiKi lin,dre(eodeidocuments:?�yy + c: " •�. D..�•;.'teader'F wert`i^alid'and com leer,f;ut he saiE that`he was not :�vel'when we'ro:tryrng to t+edux intetnado'risl'iraEe'banters 'Novi"SEotiit�rriltteaal's".''i ( t6JeCtTQ r4.,`.:• The letter;alsoW.said:'�•Oiu.:asaoeiatibtl4[�='u{,r�np` I"' *ill •with':,[3n nand he would have to interview its trying tgtetmsav+rth froekrade..is,tither:titl •!;.`i. adnce and.enoi;�ei�an t - '�M;P' .Y,S�,:;;k 8a P ^'and tb come; Y4r j ` tacl)onil '�3ays-Jack Rowe,��.�IS:presitftat ,-� Y n°° fi."0�01�6•ti}5a• :wirh s oppBsedsEt>Y,!b�.nse'TafireB! A�f. t ;J,y,,. ;.fr�d'kiw �,..uPerviaor and ksm somahing a6out.the'com- :" fr "! w i` l4e bwerac n>ssMon� v hr dnfraet�lenf[o fads at all kviis of:80. nrent;witlun.Canadit �-, ocmed4 ,lli*46�•tb try YO �Yitl Z �,. x waslBC>u!&to work with them.,He' d"he'had pm.vinpal trade:bame 1fn the t o . Lorlea?vas W� c9n.M11oifwa an< Aes;pre5enf artifieialr,bamEr3;to.>iiobr>}ty, s i6 `y"`on, ,T.rimac.,for.30 eafs'inh' u „7•:"• :'; x..inr.. aS rcu `".2`nd ''ii� time r�SPer;',�tne ahn "��{6.,3Fnnd;ifie'4'dotnr4iissi8d'!'Et[z.. tltt•1mn siaiy-�,�^,,,,, .vd�alcea1p ' '''" +er•�.a l".``l., Y '�a._.17c. •'>4!"v:-0^•s?'ttw .7 ax✓""'-'}t;h'�vf'' h' .�: ti:�` :r. 9.t ";'4,L'„'ratiodof _ {{7,,wF1 ,y�..1,;•�.i 4`'i`n..};” .e[CCA�•I�agt3 .+. .,ti., ti` .,"'is.` •,?5��+wtif�.v' Ayf•FM,�.litMc•{aSl�`;•..� .i' 7 .T Vic °° o r'o£ �s 8 o ^• £ ��o Ar g'y a$c� .08 Q $ o g.� a_g Q g P a a sH o g rdg.,• j T C'i R 'rg N 0 x pcn g.Z E g�m o C' $ - nn Sz• pp ' �°9. v; No c r� °3E—=i wm�O !C aa 'oo ers�$oS•�mpsgomR<dg156 a m 58Q8 g.e� �s 8 �kfs o art �C da�RR�2 � mo y SE p £ C SCHEDULE "E" ' I By John Short "I realize it's probably a lost cause because I locally policy has a similar appeal to municipal and don't even have the support of the manufactur- county government. Closer examination shows that ers on this,"the author of a bill to give business- such a policy has many disadvantages with adverse men an in-state preference in getting contracts effects both on government and the firms that the policy for state and municipal purchases told the Wis- purports to assist.As the Milwaukee Chapter of NAPM consin Assembly Tourism and Economic De- pointed out at the legislative hearing, the intended goal velopment Committee at a recent hearing on the of increasing business for Wisconsin firms was certain- legislation. ly a laudable goal, but in their opinion the bill would not result in good legislation for the people of Wiscon- The author was the only person to back the bill which sin nor create any more business for Wisconsin firms in would have required that Wisconsin firms be given a the long run. chance to match low bids received on state and muni- "Preferential treatment on bids is entirely contrary cipal purchase contracts from out-of-state bidders. to good purchasing practice, subsidizes in-state firms, Opposition came not only from the Wisconsin Asso- restricts competitive bidding, discourages out-of-state ciation of Manufacturers and Commerce, but also vendors from bidding, invites collusion among in-state from the Printing Industries of Wisconsin, the major vendors,and results in denying taxpayers the best qual- graphic arts trade association, the Milwaukee Associa- ity at the lowest price," William Mohaupt, President of tion of Purchasing Management and concerned public The Wisconsin Association of Public Purchasers and purchasers from the state' and local units of govern- Purchasing Administrator.for Milwaukee County told ment. the Assembly Committee. Not all preferential legislation meets with opposition. William 1. Beam, Purchasing Agent of the Milwaukee A dozen states have overt in-state preference laws. Area Technical College, advised the Committee that Many municipalities have ordinances requiring them to these shelter type laws would not stand up in the market extend a local preference. Some states and local units place and would die quickly when put to the test in the of government practice preference as a matter of policy business world. He said public purchasers spend a lot rather than law. of valuable time in research of the best product to per- The surface appeal of some type of preferential treat- form the function. They would be very naive to think ment of in-state vendors or in-state manufactured prod- that they had a local corner on the market of the best ducts is quite compelling to state legislatures. A buy- products available and would soon shrivel in isolation. In John Shore, a native of Wisconsin, is an administrator in the Mirch 1975 The Council of State Governments Wisconsin State Department of Administration. He served as published State acrd Local Corrrnment Ptrrclrcisirrg, at Director of the State Bureau of Purchases and Services for ten indepth study of public purchasing with findings that years• and is currently chairman of the National Association of preference is arguably unconstitutional as a barrier to—) State Purchasing odiciats- Committee on Research. He is co- chairman of NASPO Liaison Committee to the Coordinating interstate commerce;preference is in direct conflict with Committee on a Model procurement Code. A self-proclaimed the principles of competition and precludes the pur- er refugee from the University of Wisconsin's School o/Journalism, Short brings a wealth of purchasing experience to his discus, chas from obtaining the best competitive price; and sion of in-state preference procurement policy. potenti•�l sources of supply are red iced. 22 GOVERNMENTAL PURCHASING / FEBRUARY 1973 / 4 i SCHEDULE "F" �V Purchasing Management Association canadienne Association of Canada de esti n g o des achats LANDMARK DECISION UPHELD A British Columbia Construction firm has emerged as the victor in a court case involving apparent local preference in the awarding of contracts. Roger Tanner, president of Chinook Aggregates Ltd,of Vernon,BC won a major victory in court that will effect the way construction contracts are tendered and awarded across Canada. The BC Court of Appeal upheld a lower court ruling rejecting the practice by municipalities and other tender callers of not awarding contracts to the lowest qualified bidder unless specifically stated in the tender call. The original decision handed down in October 1987 stated that theMunicipal District of Abbotsford was wrong in 1985 when it did not award the contract to Chinook Aggregates,despite the fact it submitted the lowest bid. Instead a local firm received the contract because Abbotsford had an unadvertised policy of favouring local firms whose bids were within 10 per cent of the lowest bid. The clause,"The lowest or any tender not necessarily accepted"gave the municipality,in their opinion, the right to award the contract to whomever. The judge ruled that because the original tender call did not mention preference to local firms and because Tanner's company met the qualifications,except local residency, as low bidder,it should have received the contract. George Ouimet, an expert in tendering contracts and on whose testimony the Judge leaned heavily, testified that the phrase"any tender will not necessarily be accepted"was included in a tender call to allow the owner to cancel the project that would prevent him from awarding the contract if neccessary. As he stated,This clause is not used or intended in the industry to allow the owner to arbitrarily award the contract to just any bidder or contractor." Mr. Justice Legg stated in his Reasons for Judgement: "I agree with counsel for the respondent that it is inherent in the tendering process that the owner is inviting bidders to put in their lowest bid and that the bidders will respond accordingly. If the owner attaches an undisclosed term that is inconsistent with that tendering process, a term that the lowest qualified bid will be accepted should be implied in order to give effect to that process." It is anticipated that this decision will have a significant impact on the construction industry across Canada. Michael Atkinson,director of the Canadian Construction Association in Ottawa,believes it will put an end to the practice by government, at all levels, of awarding contracts based on local preference without it being clearly stated, and virtually ends the practice of bid shopping. Mr.Tanner's lawyer,Bob Moffat said,"The court has given a clearer meaning to this clause and defined it to in effect mean that there have to be good business reasons or pre-stated conditions for the tenderer not to award a contract to the lowest bidder." Tanner believes this decision is the first of many. He is currently aware of 15 to 20 cases nationwide that will now proceed as a result of this ruling. i . iWti�.JnAIIINlIC Ut Itlf.- �..uN./lll W .l...a' W•U.u..M I..., the COtlCepi Ot pt'CtcrGiivai ttGOt- has bevti concerned with the issue of in-state preference meet for local vendors.' -since the beginning of the Association in the late 1940's. NASPO has adopted resolutions expressing its c%pposi- Y tion to in-state preference on a half.dozen occasions. others which follow the practice administratively. NASPO has also closely monitored the status of in- The thoughtful public purchasers recognize a dual state preference legislation. In 1970 the NASPO Com- concern in administering their. purchasing programs. mittee on Competition in Governmental Purchasing They are charged with the purchase of materials, sup- conducted an indepth survey of in-state preference plies, equipment and contractual services at the lowest policy and practice. A summary of that survey, with possible cost consistent with utility. At the same time an update from data collected for preparation of Pur- they have an obligation to enlarge the competitive cli- chasing By the States, Fifth Edition, June 1977, follows: mate and to see to it that there is nothing which would ` 1970 1977' Yes No Yes No 1. Overt In-state Preference 12 31 - 121 32 . Z. Percentage Advantage to in-state Bidders 3% 2 3 5% 6 4 10% 2 3 3. "Tie-Breaker" In-state Preference in case of tie bids only 38 10 39 5 4. Reciprocity 7 9 "1977 Data from Purchasing By the States, Fifth Edition, June 1977 Draft (1) Idaho reports preference in Printing only. -There has been no change in the number of overt in- be an impediment to local or in-state firms'from flour- state preference laws. In fact, most of these laws date ishing in that competitive environment. Public pur- back 40 to 50 years. The states do report a growing chasers also recognize that these two concerns may at number of efforts at the introduction of in-state pre- times seem to be in conflict; they need not.be. ference laws. The Wisconsin State Bureau of Purchases and Ser- The majority of states have the provision, usually vices suggests a resolution of this conflict in a "white statutorily imposed, that in case of tie bids preference paper" on the subject of in-state preference prepared will be given to an in-state bidder. While this is clearly over ten years.ago to have a document ready to re- "in-state preference" such "tie-breaker." awards impact spond to the issue at any time. The paper has been up- neither the cost to the state nor freedom of competition. dated a number of times and was the basis for informa- As one state purchasing official puts it. "It beats flipping tion provided the Assembly Committee at the recent /a coin", hearing. just who is an "in-state"bidder is ad trouble- The paper points out that public purchasers know the some to many states. There is no question with manu- essence of private enterprise is free competition and facturers, processers, wholesalers, distributors or re- only through full and free competition can free mar- tailers owned and operated solely within the given state, kets, free entry into business, and opportunities for the but most states indicate that they also accept any busi- expression and growth of personal initiative and indi- ness with a branch office or warehouse in-state and a vidual judgment be assured. Such competition and re- substantial number accept any vendor with a bona sulting economic well-being cannot be realized unless fide mailing address in-state. the actual and potential capacity of local and in-state In the early 1960's only two states,.had reciprocity business is encouraged and developed. The paper sug- laws, i.e. applying sanctions only against vendors from gests the emphasis should be on appropriate measures states which had in-state preference acts. The 1970 sur- taken before going to bid rather than imposing an arti- vey identified 7 such states and by 1977 there are 9 ficial restraint on competition at time of award. which have statute law of reciprocity and a number of The public purchaser wants to treat all prospective bidders equally. There are operational patterns which - - can be followed to give a little more equality to in- "Preferential treatment on bids is state and local bidders. entirely contrary to good purchasing Generic specifications are preferable, but it is impos- ., sible with the myriad requirements of governmental (�fdCtICOS... (continued on page 34) GOVERNMENTAL PURCHASING / FEBRUARY 1978 23 43 Preference Is Not Preferred lesion among in-state vendors..." (continued from page 23; purchasing to avoid the judicious use of the 'bran) • name or equal" specification for many purchases, fro- in the Decision process. Finally, in-state or local ven- ducts of in-state or local manufacturers should be dons should be reminded that they enjoy a natural geo- specified whenever possible and first if more than one graphic advantage in sales engineering. brand name is used. Valid support of in-state and local vendors is better When generic specifications are used, they are de- accomplished in the construction of technical and pro- rived in part from specification meetings with manufac- cedural spkifications rather than in an arbitrary award turers. local and in-state manufacturers in the field of bids. should alwa,-4*be parties to spec meetings.While generic'' In-state and Total preference is inequitable because it specifications cannot. be' sewictive,` they should be .- results in part of the tax dollar being spent In subsidy framed with an awareness of'the potentials for local initead of--value. Sound governmental -purchasing production."To'service a'contract. particularly to meet equates with the concept of best value procurement, the specified delivery, a contractor is usually required i.e. award to the lowest responsible bidder meeting the to maintain an extensive inventory. Geographical con- specifications. The mission of the public purchaser is sklerations rill for-nearby warrhousug and in some to conserve public funds and to spend one penny more problems situations this can be spelled out as man A#- for whatever.,rcason is not doing that job. tort' in the.procedural specifkatlons of the solicits. The public .purchaser agts in agency for his state, tion for bids, county, municipal► or school district and for the freigkt'is part of the'comractoes selling cost and local taxpayars. This is a stewardship of critical responsi- vendors have a built-in advantage when bids tali for booty. Implicit in this stewardship is a grant of discre- delivery f�o.b. destination, tion and any infringement results in proportionately Frequently the element of service is important, either poorer purchasing perforrumce. The purchasing agent in lsustaltat#on or In nwintenanm and if service is who has his market place artificially constrained can not identified as a eriterica in award at the time the sauci- aren+ciae the kgpen u" and initiative which are the hall- tation of bkis goes oud, it certainly can weigh heavily "~arks of the professional public purchaser. i 4' 4 SCHEDULE "G" �o meeting the challenge ��G11 0SK) `ri of the future ontario W sewer & watermain contractors association 6299 AIRPORT ROAD,SUITE 702,MISSISS4UG4,ONTARIO, L4V 1N3 (416)677.0470 { .L• E' ~ January 18, 1990 291 [PURCHAS EB 6 1990 OF NECASTLE ` NG DEPARTMENT TO: Ms. P. Barrie Clerk Town of Newcastle 40 Temperance St. Bowmanville, Ontario L1C 3A6 (� fto of FROM: R.W.A. Cochran Executive Director OSWCA RE : Awarding of Contracts in Ontario The position of the Ontario Sewer & Watermain Contractors Association is that contracts for public work should be awarded to the lowest qualified bidder.. There-has been a tendancy in- the past on the part of some municipalities to favour the lowest local bidder . I refer you to the article "Chinook wins its appeal against Abbotsford" in the December , 1989 issue of CCA National (attached) . This article describes a case heard in the British Columbia courts where a contract was awarded to the lowest local bidder rather than to the lowest qualified bidder . The outcome of this case after appeal , was that the court upheld the lower courts decision to award the contract to the lowest qualified bidder . I This may be of interest to you . i � 4 Published by Canadian Construction ' Association December 1989 Chinook wins its appeal against Abbotsford In what may p�C•to be a landmark did'riot overridetthat term since it is pality had breached the implied decision regarding the competitive, •customary,and expected that such term and its duty to treat all bidders bidding process in Canada,the B.C. ` preference policies would be brought fairly and not to give any of them an Court of Appeal recently ruled that to the attention'of bidders. unfair advantage. where competitive bids are solicited Municipal' appeal. On appeal, Mr. Justice Legg in his written for construction contracts there is Abliotsford maintained the trial decision states as follows: an implied condition the owner will judge had erred in finding the bidding "I agree with counsel for the award the contract to the lowest_ oontraci oontaintd an implied term respondent that it is inherent in the qualified bidder. contrary.to the express language of tendering process that the owner The Municipal District of Abbots- the Instructiowfo Bidders.The B.C. is inviting bidders to put in their ford, B.C., invited bids in 1985-on—- C66i of Appeal, in upholding the lowest bid and that bidders will a gravel crushing contract by public lower court's decision, disagreed. It. respond accordingly. If the owner advertisement. Chinook Aggregates ruled the language in the Instructions' attaches an undisclosed•terni'that Ltd.,of Vernon,B.C.,was the lowest to Bidders did not give the owner the is inconsistent with the tendering bidder.Abbotsford awarded the con- right to apply a local preference process,a term that the lowest qua- tract to the second bidder, a local policy where that policy was not lified bid will be accepted should contractor, solely on the basis of an disclosed in the bid documents. be implied in order to give effect undisclosed preference policy favour- The court also found the munici- to that process." ing local firms whose bids are within 10 per cent of a low bid from out-of- Stronger and better apprenticeship town firms. The existence of this policy was not if task force report has any say disclosed to bidders.The Instructions to Bidders did contain, however, Apprenticeship in Canada will be human resource strategies and the a statement that "the lowest or strengthened and better promoted low participation rate of women in any tender will not necessarily be if the 28 recommendations from apprenticeship programs were all accepted." the report of federal task force covered in the task force report. Court action.Chinook brought an on apprenticeship training are The task force established in-July action for damages against Abbots- implemented. by Barbara McDougall, minister of ford. At trial, a B.C. County Court The report,presented at a sympo- employment and immigration,as one concluded the municipality had sium in Calgary,Dec. 14-15,calls for of six to review various aspects of breached an implied term of a bid- the establishment of a Federal federal labour force strategy, had ding contract that the lowest qualified Apprenticeship Board that would business and labour representatives bidder would be awarded the con- have balanced representation from trying to find workable solutions tract. It based its findings of a bid- business and tabour. The board to training problems. ding contract on the 1981 decision' would provide advice on new appren- "This was not an easy forum in of the Supreme Court of Canada in ticeship funding agreements as which to develop recommendations the Ron Engineering case as :yell as thdy-are negotiated between federal for meaningful reform," -said-John- - the more recent Federal Court judg- and provincial governments. Halliwell, CCA vice-president and ment in Best Cleaners. Another recommendation asks for business co-chairman of the task The court relied upon expert testi- the identification of apprenticeship as force. "But we did find sufficient mony as to the custom and usage of a separate training program with a common ground to work out what the construction industry to find the budget apart from the existing skill we believe are important sugges- existence of the implied term and fur- shortages program within Employ- tions for the future of this form ther ruled that the qualifying lan- ment Canada. of training. guage in the Instructions to Bidders National training standards, better "Apprenticeship..is a proper and _:r:'ter.'':°,•:_ X.:= --; r ;r u. r:< - .. . desirable method to provide ad- `-' " vanced education and skill training Chr/Stmt3S /neSSc3ge.. for workers, and it deserves strong The`Christmas'season is-always wspcciaF.Ilme=of•year when we are reunited support from government, business witli family.and,friends.Af not in person by way of phone calls and cards.Hope-. and labour," said Halliwell. ftilly,':for we-Canadians, this.holiday season:will-also be a'time to count our The task force operated under the blessingfor the-gifts we enjoy as&citizens of.this great nation. guidance of the Canadian Labour As the-year:ends, we move�into°a-decade:of high-hopes for a more peaceful Market and Productivity Centre. would:Yet:it.will be a demanding�decade i.t�so many otheiIways, not the least CCA Second Vice-Chairman Jake of which will be to'find the ways to leave our:children and future generations Thygesen,an Alberta contractor and an environment-where they too may'enjoy health and prosperity. member of the Alberta Apprentice- To all our members and all our readers best wishes for a very Happy Christmas ship Board, also represented the -and 1990_from the Officers, Directors and Staff of CCA. association on the task force. i46 S ' ,,cca 'pre .erence ouawVants l tl d '... 7 �� "_!,. (S. 'f•`fit.`� 't�i.>FU ;�•°^+ � �a �h 'i:, ;s. ee B JANICE WALI11' U, { .'"It`;sa}is;the a and in= Y pUrpos Morra:,That s„in a DECISIONS VARY 'TORONTO D C N `”I": tent.of of tt�e act is-to prevent m om Court decisions on the issue B;;TY , 'Ontario se�veand(waterni}iiu> discrimrnation in Ontario on ��you' ioot'fio*�n �' of local preference vary across + : .� the ounds of race ali 'we' the country.In B.C.;the Court contractors;want local. fer ' ip ty;5 ",not g r +f, �•. color"'nationality, ancestry, ,.�;"�+:``:,..;,.; of has ruled a munici ence eliminated'in the award;{. ou; . - Appeal ing of.co�s, and are'asiC-`'':�place of origin, sex or geo-r Y-Lorl'Roth, a partrie pality breached the term`s of rovin f � •`. graphical location of persons1F ing the p ce or 6elp,:s � Construction Law tender call by awarding a con The Ontario Sewer and:Wa-�r employed in of engaging in of:.Cassels. Brock; tract to a local company atudl termain Contractors Associa- business,".said Mona "What .well,.:said'the "" `� bad not submitted the low we' 'akig {te int }.ttion (OSWCA) is preparing'a o, stateinent" in the� � '"`a bid The court decided't=..ar do,is•to`-u hold this ` - brief to send to the Ministry of. P �o� purpose, among"ottierl owner cannot base the award-- clause.,,.- :-,- `. , . •., ; :-. , tt Consumer and. Commercial is to prevent disciinirri *,.ing of a contract.on an_undisr, r ..Tb6; -ministry"would not Relations on the'matter.It will *: the 'grounds`of Ygeogra' RCdosed preference. outline a specific ,case in give: a,• general 'ruling, but location. But tb,6.actual`' The Court of Appeal of.On' which a municipality passed ':asked Mc)rra to'submit-a writ=� sions in the-ad afire less� OLy- tario, isi'contrast, has allowed` over the lowest qualified bid- ;ten,•,account of-a particular said ..=L�7. a� ` t local preference in the award` case iri which local preference-) t .� :: she der on a job and awarded the ,'• , .: . The :w ay.. discrunin o ling of a contract because the contract to�a local company xwas.tlie'.basis for.awarding a. business:_piadice are ' r p 'contract",:. .. -•r� �e •contiacti;doeuments contained' whose bid was higher. �g =�eAGu' ' ''re trar,fez serried in the act appeals to- a`cJause-that said the `'lowest The association hopes the :" -:h`;; ': make that concept;poten Mali or'any..tender"would not new ministry will decide :that zac,z,sazd the.ministry.will , Y £' applicable to a preference'fozx essarily;..be accepted AcmE eview�thi-6- inforrination from. > , choosing a contractor on:the y the use of local subtrades,lrrt 'Building'&Construction Ltd, Corr and..decide.whether , basis of local preference.vio- ' y yr. ...y not necessazily to a prefei�erice the low,bidder which feels, later the Discriminate Busi= p f• ,-' y' O° vendon of; yr•.;1' Discriminatory for local general contractors, wipnged in that case,.has ap-% soecrfic case.' Roth said 'Q; -' '' plied4fa�e-leave to appeal tha�.y Hess Practices Act. :'. y ,a ,,, t., v orra4 ,protested to mu-" �� V It's simply a matter of pro-- c••; ,.gyp !.c,u: , `What the act appears to,lie decisron to''the Supreme C oul leering the sanctity of the ten- 'met councils'.when they`; going :after`when.it'sa ills" of Canada:} .'` T'' i deting 11aV ,iV1Wai COnt2�tCts 66 the; YS r t, a ! + T' Ott.: process, rarer OSWCA :"w�• t- �.. _ criminatery Business practi { Acmes will 'argue that an —?,. ference Lastr: o. ;.r: ':.a t.T' assistant executive 'director and;' to define-them b'`ex awntrr who ca1Ls for tendei3 ' Ocid of•. ,example;,'he' .. . Sam Morra in an interview, s: b;Haniltot Township ampler is not to deal:with a srt must make clear from the star Municipalities almosf `al->;' �� . Y�,<: • uation .where it's one ,on;,one wh it might not `acce the. was award contracts. to'the c011 (° CObOt11g) >#ii y Y port, the .lowest but where`it's one person.try rowest bid In other words, lowest qualified bidder,;said ed ing to make another person ';'will argue that;apreference foi bi t•on a $157 000 Morra. But during recessions for? ,' v et , refuse to do business with a' local co mpams;;_must."be sewer and ad re- , �..-. especially, he said, they at . cons ction; ' third person Mated tIVEM.':'. : times pass over the''•lowest':, ,..But, despite However, Roth d if,OSj Mo s efforts, c de- WCA submits its s cific case bidder to award contrails to local companies. ctde o awaiid clue p big r bidder, ch wasta to the Ministry-of onsuM'cr HAPPENING MORE and Commercial lationst <. , r local mpapy 4 ,I ve seen it happen more rn4 .. -and it decides the low It qu the last two years .than I've" This is likely-.the - t ified bid should not ha , seen in the pasta It's because ;association will.submit r the passed over,that decisto 'ii any of local pressure.". ;ministry for a':ieview- *aid help create a"mindset" Morra asked the ministry• Mona t,'r °�� � • '. � municipalities and others that for .a general ruling• about "In this day.slid age;when the lowest qualified bid ust whether awarding contracts on.* we're trying;.to lower trade be accepted the basis of a local preference barriers across;the world, it violate'z;the purpose clause in -'seems ludicrous that" we're the Discriminatory Business erecting unici ''' g pal ones,"said Practices Act, I