When is an “independent fairness advisor” …not?
Putting public projects of any kind out to bid is a somewhat sensitive process, one that the government allegedly strives to ensure is conducted in a transparent and fair manner, for all parties involved – or so they would have you believe. ( …think Charles River Associates and BC Rail ) When a private partner enters the equation, as with P3 projects- ( public-private partnerships) – it becomes even more important for the public in particular, to be assured of this transparency and fair conduct.
In fact, to avoid any perceptions or allegations of unfair bidding, favouritism or conflicts of interest, as well as ensure the process follows the standards set by the government, an independent fairness advisor is appointed to thoroughly review and monitor the process.
This is supposed to provide the public with an assurance that the entire deal was handled in a fair and appropriate manner, as well as providing the government, Partnerships BC and the private partner with the same said assurances with regards to the decisions made during the procurement ( bidding) process.
At the completion of the deal, the fairness advisor then issues a report detailing everything he or she did in reviewing the bidding process, and what conclusions they have arrived at.
Because of the nature of the role and duties of a fairness reviewer, or auditor as they are occasionally referred to, one would think that it would be prudent to ensure the person appointed has no prior or current connections to any of the parties involved in the process, in particular, the government. This would eliminate any appearance or perception of bias or other conflict completely, at least for those putting forward proposals, as well as the interested public.
But what if, let’s say, the attorney retained to act as the ” independent fairness advisor” worked for has worked for not one, but two law firms that regularly donated to the BC liberal party ?
Or has previously defended or represented the province of British Columbia in a number of actions, prior to being appointed a fairness advisor/auditor in several public procurements?
Joan M. Young, currently a lawyer with Lang Michener LLP, since March of 2009, has acted as an independent fairness advisor on a number of public projects in British Columbia over the years, most recently for the Surrey Memorial Hospital expansion, but also the William R. Bennett Bridge, the Vernon- Kelowna Hospital project, and the Fort St. John Hospital Project. Prior to joining Lang MichenerLLP, she worked with Heenan Blaikie, from December 2006 to March 2009. (Both firms have donated substantially to the BC Liberal party between 2005 and 2009.)
Let me be clear- Ms. Young’s professionalism is not in question here – her reputation is steller- however the method of appointing an “independent fairness advisor” is definately in question.
In trying to find out how and who appoints these advisors, I emailed Partnerships BC, however have not received a response as of the time of this posting. However, I did locate this document: http://www.partnershipsbc.ca/files/documents/FairnessAdvisorRFQ2008Nov-Final.pdf, on their website- it is a request for qualifications for fairness advisors, issued in 2008, but ongoing until December of this year.
It details some of their criteria for evaluating potential candidates, however this is all it had to say for remuneration:
“It is expected that any Candidate retained by Partnerships BC will enter into a Contract with Partnerships BC. Any Contract between a Candidate and Partnerships BC will be substantially similar to the terms and conditions of the standard Partnerships British Columbia Service Contract (General), in use by Partnerships BC at the time of the Contract.The basis of compensation and form of Contract between a Candidate and a Client will be as agreed between the parties ”
So, the fairness advisor is selected and hire and paid by Partnerships BC, to report to Partnerships BC or other senior official in the Ministry such as a deputy minister. In the case of Ms. Young, one might ask, if it is fair to the bidders,or in the public’s best interests, to have a professional with such a long and close working relationship with the province of B.C. put in the role of someone deemed with ensuring the fairness of the bidding process?
Some may say it is anything but fair, and that there is an expectation that someone who is appointed as independent and beyond reproach in this un-biased capacity of fairness advisor, would not have any prior working relationship with any of the participants of the bidding process -on either the government or private sector side . Would such a history constitute a conflict of interest with the role of fairness advisor ? Perhaps not, however that is certainly not something I am qualified to determine. It is interesting to note that as far as I can determine, no such “fairness advisor” has given anything but full approval for the bidding process on any project. One wonders if such a thing would even occur…
Considering the way Partnerships BC has been shown to skew their Value for Cost reports in a blatant bias and favour towards their method of pricing and procurement – as in the Sea to Sky highway – certainly I think it is in both the public’s best interest, as well as the bidders, to question these “independent fairness advisor” appointments for what they are worth.
*** while we are on the topic of questioning the activities of Partnerships BC, let’s take a look at what the executives behind this unique entity who answers to no one but themselves, are pulling in, as per the 2009/2010 compensation disclosure, in PDF format : executive disclosure
Click on the picture to enlarge and see what one earns for pushing these expensive,over-priced and often over- built P3 projects on the people of BC.
** credit given where it is due to NVG, research assistant extraordinaire, for sending some pointed links in my direction!