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Setting the framework:
Considerations for fairness experts
Denis Chamberland and Don Johnston
The role of fairness commissioner began about 10 years ago, when governments back then were looking to replace the traditional internal review process with something more modern.
As the name implies, fairness commissioners help ensure contract awards are fair and transparent. Some argue the role emerged from the growing militancy of private-sector bidders who are more than willing to challenge the first sign of unfairness in the procurement process.
Others say it's more a reflection of a perceived crisis of confidence in public sector procurement. But many experts agree implementing a fairness commissioner is likely to be difficult in the majority of public institutions.
Institutions such as hospitals and school boards don't often have the internal resources and expertise to assess the optimal approach. In other words, the foundation of a robust, modern procurement system isn't quite in place yet. For example, we've seen institutions contract for projects worth $25 million to $35 million without support from any procurement specialist, legal or otherwise.
While those projects clearly deserved the helping hand of a fairness commissioner, they were more in need of a thorough internal review of the organizations' procurement practices to ensure they were up-to-date and reflective of current legal requirements. The fairness role would then be defined within the context of a reliable procurement framework.
The ideal fairness commissioner
If such reviews have already been completed, public organizations might consider bringing in a fairness expert. When looking to fill the role, the tendency is to search among the ranks of the retired. At first glance, though, this tendency would seem to unduly restrict the pool of ideal candidates.
For instance, in the case of the City of Toronto Leasing Inquiry, the City appointed an integrity commissioner, who was a well-regarded retired judge, to monitor major procurement projects. This may be an appropriate approach at the City of Toronto, given the City's significant internal resources and expertise in procurement, but it would not be ideal with institutions that have little or no procurement expertise. In our view, the ideal profile for the position of fairness commissioner combines at least the following four features:
• Extensive expertise in procurement: He or she should have sufficient understanding of the procurement business to recognize best practices;
• Extensive knowledge of procurement law;
• Understanding of the business process: Incorrect business processes can ruin an otherwise fair and legal procurement process. It's not enough to ensure the pieces of paper are right; it's essential to structure the process to prevent either open or surreptitious interference. Accountability must be built into every procurement project.
The fairness commissioner usually acts as an informal, one-person process audit committee throughout the project, to ensure business processes don't undermine otherwise well-crafted procurements.
However, he or she should also provide ongoing, roll-up-the-sleeves practical advice to procurement officials so business processes remain both fair and compliant with the procurement process, and not the other way around.
• Understanding of public sector internal dynamics: The fairness commissioner should have extensive experience working with public sector organizations; and dealing with input from various stakeholders within the bureaucracy, anticipating inter-agency dynamics, and advising elected officials (at the local government level).
Where the fairness commissioner works with a private-sector buyer, particularly a large one, having the skills to steer through and harmonize the many opinions that may be articulated will prove a useful skill.
Since the fairness role is a new innovation, its essential features have yet to be defined. What does the fairness role truly involve? Is it purely process-oriented, with a written attestation provided at the end? Or is advisory? And should the role be defined precisely across the industry, or is it better defined within the context of each RFP process? These are some of the outstanding questions.
And what is the correct terminology for the role? We have seen 'fairness commissioner', 'fairness monitor', 'fairness auditor', and 'fairness advisor'. Do these all mean the same, or something a little different in each case? There's currently no widely accepted nomenclature. There are also other fundamental questions that have yet to be tested, including the following:
• Is there ever a time when a fairness commissioner should withdraw from the role?
• What weight will a fairness opinion have before a court, and does the specific role played (auditor versus adviser or commissioner) make any difference?
• Is there any hard evidence that the fairness role helps to avoid challenges? Or to facilitate the resolution of disputes?
• Can the fairness commissioner be truly objective when he or she is retained by the party seeking the opinion?
Because the fairness role is not likely to disappear anytime soon, we believe it deserves more scrutiny and analysis than it has received so far. As the role evolves towards a recognized industry practice, buyers and those in the fairness business may see a benefit in the establishment of a national association of fairness commissioners, which could set industry standards and generally contribute to the growing body of knowledge in this area.
Don Johnston is the technology industry group leader at the law firm Aird & Berlis LLP and co-leader of the corporate-commercial practice group. He can be reached at (416) 865-3072, or at djohnston@airdberlis.com
Denis Chamberland is a partner with Aird & Berlis LLP. He can be reached at (416) 865-3078 or at dchamberland@airdberlis.com
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