Editor’s Corner article

Is it ironic, or sadly inevitable, that Liberals have begun to reach too far in a quest for control?

A late-breaking CBC News report by Murray Brewster about a section of the draft Surface Combatant RFP (and which remained in the released version of 27 October 2016), has struck a chord within the community – proving Canadians are not always complacent.

The backlash caused PSPC, the government’s contracting department, to quickly “clarify” the offending section, which at first stated:

“Neither the bidders, nor any of their respective subcontractors, employees or representatives shall make any public comment, respond to questions in a public forum or carry out any activities to either criticize another bidder or any bid – or publicly advertise their qualifications.”

You can understand my initial concern as I saw the entire defence publication sector being wiped out, with the tendrils of control making their way into every future defence contract and then to every federal contract, with provinces and municipalities not far behind (thus putting not only all specialty publications but the entire publishing community on the chopping block). I had to act, and time was of the essence.

Defence publications provide a service to Canada – to industry, the military, the public, and to the government itself – by increasing awareness and providing a dedicated stream of informed comment, analysis, and education on topics that are of relevance to the defence community writ large.

We depend (almost exclusively) on advertising revenues to cover the high costs of writers, production and distribution – and have no sources other than the defence industry itself (by the way, a special shout-out to FrontLine’s advertisers in this edition – do I have to worry that you will be penalized for unknowingly supporting free speech?).

Our purpose is also to “shine the light” where shadows gather, because we are ­virtually the only ones who can, since those with skin in the game would risk their livelihood if they were to alert the public to questionable practices. As initially written, the Government of Canada would have instantly doomed the defence publishing business and, if left unchallenged, this would have corrupted all future procurement contracts.

After a frantic day of sending letters to the PM and the Minister of PSPC; sending out a wide-reaching email on the topic (encouraging recipients to share and respond); fielding questions from all sides; and monitoring emails flying back and forth, from Newfoundland (where I was attending the Maritime & Arctic Safety & Security conference) to BC and literally around the world (heads-up: this little cock-up is also making the rounds in Europe and Australia), PSPC’s official response at a previously-scheduled press conference was that, basically, the section didn’t mean what it said, and that “clarity […] will be provided to the qualified bidders.” It was further explained in a phone call that the section would quickly be revised in an official amendment to the RFP.

At the end of the day, a clarifying email from PSPC stated that:

“The intent of the clause is simply to encourage bidders to respect and preserve the integrity of the solicitation process and focus on the content of their proposals. Companies are free to promote their products and services, but the RFP asks that they not do so in a way that would discredit the procurement process or other bidders. Industry is free to communicate as it sees fit.”

However, bidders are not “free to communicate” as they see fit. They are now required to get approval from Irving Shipbuilding (ISI) before making any public statements; before arranging any promotional activities; before agreeing to interviews. There is no way this reality can be extrapolated from the text released to the media.

The last point of the email informs me (of course) that PSPC is “committed to fair, open and transparent process.” How is misrepresenting the text of the RFP transparent?

Alan Williams worded it slightly differently in this comment on my blog post: “The mandate of PSPC is to ensure the integrity of the procurement process,” he said. Integrity, I suggest, is what the government should focus on rather than the stifling of criticism (and if anyone should value the role of a critic, it should be the Liberals). Williams continued: “Bidders need to be assured that the procurement process will be open, fair and transparent with no advantage provided to one bidder over another.”

Well, it will come as no surprise that bidders are certainly not confident of an open, fair or transparent process. In fact, the word “transparent” is where irony, if not downright misleading propaganda, first rears its ugly head.

In a related issue, the Canadian Taxpayers Federation has managed to push transparency into the forefront. The organization finally won its Freedom of Information Act appeal for releasing terms and conditions of the ISI deal (which the Harper government had at first refused, sparking public criticism). Now, some four years later, Nova Scotia’s privacy commissioner has ruled on the case and recommended “full disclosure” of the $304-million deal.

Lest you think this secrecy is contained to CSC – or even to the defence sector – think again. In another example of government control gone amok, Environment Canada last week attempted to coerce opposition critic Ed Fast into agreeing not to speak to media and to “respect the authority” of Minister McKenna while joining a Canadian delegation to the UN Climate change conference (COP22) in November. After that hit the press, McKenna intervened and the restrictions were changed, however Fast has replied that he will not attend if held to any conditions, saying conditions did not exist in the past. This is another example of innocuous precedent being set that can be abused in future.

While undoubtedly restrictive, it could be equally argued that the verbiage in the CSC RFP is either very clear or extremely vague. What constitutes advertising and public comment? Why the emphasis on not criticizing another bidder (sounds like an over-protective parent)? What are the criteria under which any of this will be judged? Will sponsorship also have to be approved? Will conference appearances have to be cancelled? After all, these are all forms of self-promotion (egad, someone might say something that hasn’t been approved – would the company be disqualified?). Will spies have to attend every conference? What about advertising qualifications in another country, will someone have to start monitoring global communications? After all, those same qualifications probably relate directly to CSC capabilities.

As of this writing, companies may not toot their own horns – advising the world that they feel they have the right qualifications and capabilities for the largest procurement in Canada’s history – unless ISI says it’s ok to do so. Most people would agree this is an infringement on private industry’s right to self-determination.

Why go this extra step, and why now? As defence journalist David Pugliese noted: “There are concerns in some quarters the outcome of the program has already been determined.” If there is any merit to this statement, that could be one reason that ISI would push for such an over-arching control mechanism to be inserted.

Protection from criticism is not a valid reason. The previous government has been soundly criticized for handing over such an important decision-making responsibility to a privately-owned corporation that has been widely criticized as a corporate bully with significant U.S. insider influence. Potential bidders have grumbled at the concept of handing over sensitive – no, critical – IP to a company with direct leadership links to American companies that are competitors to those bidders, all of which lends credence to Pugliese’s remarks.

To be precise, neither the bidders nor the myriad subcontractors and hopefuls are allowed to have anything in the public space without ISI approval. Why is there such secrecy? Has the government been bullied into making concessions in order to muzzle any discontent? If so, by trying to contain all communication under the guise of fair play and focusing on the work at hand, it is having quite the opposite effect.

“As it sees fit” sounds like a metaphor for “at its own risk.” With the current wording, a bidder can be deemed non-compliant if anyone related to the bid, however marginally, says something unapproved in the public domain. That section of the RFP must be either deleted entirely or completely re-written to specify, in no uncertain terms, that there will be no repercussions and no restrictions on any company for communicating in any public forum, or for exercising its right to free speech. To be clear: the federal government cannot threaten the right of companies to self-promotion in the public domain – an area, like the bedroom, in which the government has no business trying to control.
Holding a lucrative contract as leverage for maintaining control of public awareness is a travesty of democracy itself.

Charter challenge anyone?

UPDATE:

In a follow-up email response to FrontLine on November 9th, Lisa Campbell, ADM, Defence and Marine Procurement Branch, wrote:

As you may be aware, Public Services and Procurement Canada issued a clarification notice on October 27, 2016, which stated:

"The intent of the clause is simply to encourage bidders to respect and preserve the integrity of the solicitation process and focus on the content of their proposals. Companies are free to promote their products and services, but the RFP asks that they not do so in a way that would discredit the procurement process or other bidders."

Irving Shipbuilding Inc. has since advised all of the prospective bidders that the request for proposal has been amended. The amended clause now states that:

"A bidder shall not, and shall ensure that its subcontractors, employees and representatives do not issue or disseminate any media release, public announcement or public disclosure (whether for publication in the press, on the radio, television, internet or any other medium) with respect to the outcome of the RFP process, including any determination of the Preferred Bidder or Selected Bidder, without the prior written consent of ISI and in any event not prior to the official announcement by Canada."

The revised amendment restricts the advertisement of participation, or another's participation, within a governmental procurement process. With regard to advertising for the purpose of promoting and selling goods and services, your publication may continue to do so. We appreciate your interest in this matter.

I've been contemplating this response for two weeks now, and I can't decide if this is better or worse, however, I am still convinced the entire sentence needs to be eliminated in order for free speech to be protected in Canada. What do you think? Please contact me directly.

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Chris MacLean is the Editor-in-Chief of FrontLine magazine and avid supporter the CAF and of transparency in government.