Who’s in Charge Here? – A letter to the Mayor and Council
Mayor Ruttan and Council:
At the Council meeting of May 10, a $5 million contract came before you (RFP 1003) which appeared to be passed in large part because Staff reported that they had obtained legal advice that if it were not awarded, the City might be open to litigation. Councillor Sherry, late in the discussion, reminded all present that no contract larger than $250,000 could be awarded without approval from Council.
I would like to know whether the authority to inform bidders of the results of a bidding process was open to Staff without Council’s prior approval given that this apparently leads to legal obligations which override existing city signing authority bylaws and apparently supersedes Council’s authority. Has Council allowed Staff practices to trump Council’s obligations to govern under the bylaws of this city? Was legal advice sought regarding this specific problem?
I await your response and ask that you also consider this question: Have you ever found a lawyer who is willing to stipulate that there is no risk of litigation from any action that might be taken? In other words, is it ever reasonable to anticipate a legal response which does not reflect a possible risk? And if it is not, then how are we to measure the magnitude of the risk so that the response is of value in the real world?
Ron Bolin
Posts and Comments on Nanaimo Governance 
Staff should not have made the results of their bid evaluations and/or their recommendations for a contract of this potential value until Council had a chance to review.Otherwise it makes the process a farce because Council effectively has no say in the matter if they accept at face value the legal opinion that the City is at risk.As you say,no lawyer would say otherwise,but what he could have done is to review the law on the subject and provide Council with options.
I also believe that $250K is too high to leave to staff.I suggest that any potential contract $100K or greater should require that staff’s recommendation be reviewed by Council in camera before the bid results are made public.This would give Council oversight and the opportunity for a detailed review of the process,something that the taxpayer has every right to expect from the elected officials. The criteria which was used to evaluate the bids was confusing,subjective and open to debate.
Has anyone actually scrutinized staff’s calculations regards the presumed savings they claim will accrue to the city.
Taking savings for one year on a limited number of items and then projecting is not a very reliable means of calculation.
I was in the electrical business, and the is no way you could guarantee copper prices five months out, let alone five years.
Is this contract available for public scrutiny?
Jim: Agreed. If these folks can use this limited information to correctly forecast the future for five years, then the city should be in clover with its investments. Unfortunately I suspect that they are about as good as most of the investment hustlers out there who just cross their fingers and hope for the best. Betting the farm on this level of information at this time does not really seem to be sound. Why was it changed from one year to five? Is much of the money saved to be found in the reduced work load to city personnel from only having to conduct a tender once instead of five times?
Jim-You could ask to see the contract but in all likelyhood the City and/or Vendor will refuse and say you have to submit a Freedom of Information request.Should you decide to proceed with that, the City will take 30 business to respond to your request,which they will refuse again.Your next option is to submit the request to the FOI office in Victoria.This will take anywhere from 9 to 12 months,with no guarantee of success.This has been my experience but the local newspaper seems to be more successful with their FOI requests.
Needless to say, I haven’t had any response from anyone at the city in this matter. As I indicated in my piece on political parties, Council is well trained to stonewall in keeping with Hazelitt’s advice that to give a reason for anything is to breed a doubt of it. It may be good advice, but do such politics have anything to do with democracy? Is there nothing to be done in such cases?
When Council “has to hold their noses” (Loyd Sherry quote) and be bullied into supporting an RFP that they clearly don’t like – then obviously, once again, Staff are calling the shots. Sounds to me like this RFP was fumbled from the beginning.