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Fairness commissioners:
Adding more oversight to major projects
Paul Emanuelli
As deals get bigger and the stakes keep getting higher, the risks of failure in contracting become more pronounced. With recent spending scandals, public institutions are under increased pressure to ensure their contracts are fair and transparent.
To help achieve these ends, Justice Bellamy—in the Toronto Computer Leasing and Toronto External Contracts Inquiries Report ("the Bellamy Report")—recommends the use of fairness commissioners for major projects, to strengthen both the reality and perception of integrity in public procurement. According to Bellamy, a fairness commissioner is an individual who monitors the procurement process to ensure management practices are of the highest standards.
For small to mid-sized projects, the commissioner may be an internal person, such as someone from the central purchasing authority. The person often becomes involved at the invitation of the line department, particularly where the buying team anticipates a higher than normal degree of external scrutiny. Larger, more complex projects benefit from an external expert.
In essence, there are five critical details public institutions must consider before appointing a fairness commissioner:
1. Which projects warrant a fairness commissioner?
The Bellamy Report recommends using them for major projects. While there's no single criterion for what constitutes a major project, high-value, high-profile, complex and controversial projects are the primary candidates.
Institutions should establish clear criteria for flagging projects that require a fairness commissioner. While some jurisdictions have developed a formal policy to help inform this decision, most public institutions have no official policy and should consider adopting one in the near future.
2. Determining the appropriate skill set.
Once the decision to retain a fairness commissioner has been made, the purchasing organization should consider the appropriate skill set required for the project. As the Bellamy Report notes, the potential range of backgrounds for fairness commissioners can be quite diverse. Candidates are often found among the ranks of retired executives, senior civil servants, or academics.
3. Ensuring the independence of the fairness commissioner.
As the Bellamy Report notes, to be effective, a fairness commissioner should have a degree of independence from the project team. The individual should have an independent oversight role and capacity to ensure disagreements with the officials managing procurement on the government side are brought to the attention of appropriate senior managers.
"It is important to ensure the internal person has both objectivity and independence from the procurement decision-makers," Bellamy said. To have credibility, a fairness commissioner must be empowered with sufficient independence to provide an effective check-and-balance to the project team.
4. Defining the scope of engagement
The purchasing organization should clearly establish the role of the fairness commissioner at the outset of a project. While one of the key functions of a fairness commissioner is ensuring the fairness of the evaluation process, the commissioner can also play a role during the preliminary planning phases, particularly with respect to larger and more complex undertakings.
Apparently, the role of a fairness commissioner can be far-reaching and multi-faceted. Since the role will vary from one project to the next, confirming the fairness commissioner's mandate is a critical preliminary detail to address during the initial stages of project planning.
5. Balancing fairness and effectiveness
At the end of the day, it's the public institution, rather than the fairness commissioner, who is responsible for both the fairness and success of the project. While the process has to be transparent and fair, buyers must also strive to get a good deal for the taxpayer, deliver the product or service within reasonable timeframes, and navigate a tendering terrain that is full of legal risk.
While a project team should carefully integrate fairness considerations into its overall project governance, it should be careful to balance fairness concerns with other critical project priorities.
In setting the standard for public procurement, leading jurisdictions retain fairness commissioners for their major projects. It's likely only a matter of time before this new innovation becomes a generally recognized industry practice.
Paul Emanuelli is a Toronto lawyer whose practice focuses on public procurement, outsourcing and supply chain management. He is the author of a textbook entitled Government Procurement. He may be reached at paul.emanuelli@sympatico.ca
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