The idea behind public tendering, overall, is that sunlight disinfects.
Essentially (there are exceptions), when the government or one of its agencies or bodies buys something over $10,000, the purchase is supposed to be public — everyone has a chance to bid for the service, and the bidding is as transparent as possible.
In fact, just as with the courts, the public is supposed to be able to witness the activity.
Here’s part of the Public Tender Act: “Tenders for public works, goods or services and leases called under this Act shall be opened in public at the prescribed time and place.”
Well, because the government spends a lot of money and wields a lot of fiscal clout. It can make or break businesses, and public tenders are supposed to not only get governments the best possible price, but to make sure that purchases can withstand public scrutiny.
And all that information is supposed to be immediately public and available: consider section 10 of the Act.
“10.1 (1) Where a tender is invited by a government-funded body, the government-funded body shall, at the time the tender is invited, provide the chief operating officer of the Government Purchasing Agency
(a) with information respecting the tender invitation in the form required by the chief operating officer; and
(b) within 30 days of awarding a tender, with information respecting the award of the tender including the name of the successful bidder and the amount of the contract.
(2) The chief operating officer of the Government Purchasing Agency shall make available, upon request, the information submitted under subsection (1).”
You may notice that the word “shall” is used again — that means releasing the information isn’t optional. It’s required.
And you don’t even have to go through the province’s access to information law to get it.
But what if you did?
There’s a curious case involving trenching and rock removal during construction of a Paradise school: someone asked for information on how much rock had been hauled from the site, and how much a contractor and subcontractor were paid for the work.
Here’s the response from the deputy minister of transportation and works, Brent Meade: “I am pleased to inform you that your request for access to this information has been granted in part. In particular, we are able to advise that the quantity paid for trench rock removal is 651.57 cubic metres, and the quantity paid for mass rock removal is 45.37 cubic metres. Access to information paid out for trench and mass rock removal has been refused in accordance with the following exceptions to disclosure, as specified in the Access to Information and Protection of Privacy Act …”
The deputy minister went on to cite a clause that says the amount of the government payment is commercial or financial information belonging to the contractor.
It is a fascinating interpretation of access to information: in fact, it turns the concept of access right on its head. Instead of giving a right to access to information, it’s being used to block information that, under another provincial law, apparently should be freely and publicly available.
Not the only case
And it’s not the only recent case where the act has been used to block payment details.
Another applicant recently wanted to know the hourly rate the province was paying lawyer Brian Casey and other lawyers to act as prosecutors in a sensitive case. The response from the Department of Justice?
Well, it turns out that the commercial interests of the lawyer involved trumps the rights of the public to know what they are paying for.
“The hourly rate billed to government by the aforementioned solicitors is considered confidential. These rates are sometimes negotiable, and publicly disclosing the hourly rates of these solicitors could possibly compromise their position in negotiating future rates with other parties,” wrote Heather Jacobs, the assistant deputy minister of justice.
How nice to know that the public’s right to know is secondary to something as tenuous as the “possible compromise” of the negotiating position of some lawyers.
Corporation already exempt
We already have Nalcor, the province’s energy giant, with a particularly interesting status when it come to public tendering: the legislation that created the giant says bluntly, “The Public Tender Act does not apply to the corporation or a subsidiary.”
And on Muskrat Falls, the company doesn’t even release what the winning prices for bids are. That’s something Premier Kathy Dunderdale says is necessary.
“To date, Nalcor has been able to receive competitive bids for contracts, in large part by not releasing estimates for work in advance of the bidding process and keeping the bids from contractors confidential. While this might seem like secrecy to some, this process allows Nalcor to continue to get competitive bids, ensuring best value for the project and Newfoundland and Labrador ratepayers. I would also note that this same process is followed for all major projects in our province and elsewhere,” the premier wrote in a letter to The Telegram.
It’s interesting: the purpose of public tendering is to get the best price with the most transparent process — now we’re being told that secrecy, in fact, gets the best deal.
In addition, we now have cases where access to information law means suppliers have a right to privacy that trumps the public right to know.
One of the givens when you do work for government is that the details are going to be public: it’s the simplest way to make sure that nepotism and corruption is kept at bay.
Keeping secrets makes fertile ground for misconduct.
Without the bright light of public disclosure shining in the corners, all you have is someone saying, “trust us to do what’s right.”
That’s not the best system.
Russell Wangersky is The Telegram’s
editorial page editor. He can be reached by email at email@example.com.