Deputation to General Government & Licensing Committee — Review of Open Contracting Global Principles — Oct 20, 2021
Tracking Outcomes of the PayIt Procurement for Accountability
This is my deputation, made on behalf of Tech Reset Canada, on the City’s adoption of the Open Contracting Global Principles. The adoption of these principles is one outcome of the recent PayIt action. Link to source audio is here: https://www.youtube.com/watch?v=8g-o1tPqXG0 — If you start the video at about 14 minutes in you’ll be good.
The best part of this deputation were the questions asked by Councillors Ainslie and Holyday, particularly Councillor Holyday’s articulation of the governance elements of our discussion. Skip down to the Q&A header to see the back and forth. Figuring out what to do about what we talked about is an ongoing adventure. Also, big thank you to James McKinney and Pierre-Antoine Ferron for being patient and long time teachers of mine regarding contracting.
All errors in this transcription are mine, and some minor edits have been made for readability. I left my “you knows” and casualness in because they made me laugh when I read them. Also big thank you Fanny for your help with this :)
Deputation and Question and Answer Transcript
City of Toronto General Government and Licensing Committee — October 20, 2021
Transcription (14:40 -29:15)
Councillor Paul Ainslie: (…) you have five minutes whenever you’re ready, and thanks for being here this morning.
Me: Good morning committee, thanks for having me. I’m going to admit that I’m here a little bit ad hoc so forgive me in my pandemic mode remarks — I’ll definitely keep them short.
A couple of things. The first thing is I just want to say thank you and that I’m so happy to see the idea of open contracting beginning to move more formally through city process. It’s super encouraging and it’s really nice because Toronto can become more part of a global community that is looking at standards relating to procurement and contracting. And so, the topline message here is I’m really happy to see this happening, and I’m really happy to see that the report is positive towards adopting and implementing these things. So that’s the first thing.
The second thing I want to say is that sometimes when people don’t show up at committees like today, I’ve heard councillors say: “no one showed up, everything must be fine,” and I just want to flag for everyone here that procurement, and technology procurement in particular, is not a space where civil society and many of the residents in the city are super, myself included, you know, able to jump in and get involved because there’s a lot of jargon and a lot of complexity. So I just want to say to everybody that just because things move through this committee, particularly as it pertains to procurement, with no deputants, please don’t mistake that silence for consent or happiness with what is happening. I think especially in a pandemic, that’s really, really, important. That’s the second point.
The third point I want to mention is that while this report is generally, you know, positive on doing and implementing open contracting, it’s really important that doing this stuff is supported by budgets. That we consider things that are really critical like the government publishing enough information about the formation or execution of public contracts which we don’t see much of in that report, because this is about public monitoring, proper use of public resources, and that’s what the global community looks to so let’s think about tightening that up. We really need to make sure that governments do not sign NDAs. That’s something critical. Again, there’s global discourse on that, and we need to figure that out in this report because it’s not there as far as I can see. And finally, we really have to say, if everything that the city’s been doing so far is fine and that we can just proceed with minor adjustments I have to look back at the recent procurement of PayIt and say that I don’t agree. I think that we can get into the details at another time but I think we have to think about how we hold tight to these principles when we talk about how to make sure you don’t have any directed procurement, while you make sure that process doesn’t exercise preferential treatment.
I’ve got a few more comments on lobbying because I’m so ad hoc. I’m not sure how much time I have left, can someone let me know?
I also want to talk about lobbying. Lobbyists we need to understand a little bit more specifically sometimes, like in the OECD, understanding the taxonomy with types of lobbyists and linking them to any other information that might be relevant. In terms of content or things they’re working on, anything related to relationships outside, where the city participates in informal interactions anything from LinkedIn to conferences, there’s a lot of stuff going on where there are soft social relationships being formed with commercial vendors and suppliers. These things do not get caught by the lobbying registration as it stands today. So these are things I’m trying to suggest where it’s great that we’re looking at this stuff, how do we tighten it up, how do we commit to implementation that is funded.
The number one message here is that the point of all this stuff is to make sure that we the public can be more involved in how this city is directing public funds. How do we make sure that some of these decisions that get made, um, should we even be purchasing things? Should we be investing in our unionized technology workforce to be doing our technology procurement? Maybe it shouldn’t be contracted out? Maybe we should be thinking how we’re going to manage this inside. So the reason that all of this stuff matters from a civil society perspective and from a resident perspective is this: show your work. We want to have good insight into how public funds are being spent and directed, we want to be part of that work, this is a new area. Super happy to see that it’s happening and we want to continue to be involved. This report is only as good as how the city implements it. If you just adopt these principles and then keep on doing what you were doing before we are not solving our problems.
Thanks so much for your time today, and if you have any questions I’m here. I have to admit again, super ad hoc, and this is an area I’m learning a lot about myself, so forgive me if I don’t have answers, but otherwise thanks for your time.
Councillor Ainslie: Ok, thank you Bianca, does anybody have any questions for Ms. Wylie? (…) If I said to you: ‘what are your top three things that you think we need out of this report?’, what would they be?
Me: I think we really need to get into this part about the government requiring timely and routine publication of enough information about the award, execution, performance, (and) completion of public contracting so that the public can get involved. That’s one, and that’s major.
Councillor Ainslie: How do you think we could do that?
Me: Well, I think a lot of it is more just showing your work, you know? Open government as a concept is really talking about our public service capacity. What was the trigger? Who are the parties involved? How does the story go, from a narrative perspective, let people know why we the City were thinking about this. I know that sounds less tight, like, ‘here are specific technical steps,’ what I’m trying to say is: for more of us to get engaged, I think we need to understand: where are the cities’ pain points in terms of the procurements, why are they happening, how could we think about these things? One idea, that I’ve suggested with the Digital infrastructure Plan, is to publish “here are the procurements coming down the pipes” so we can give people a little more notice as to something that’s happening, but I think we can continue to riff on that. There’s more stuff I can share. I’ll send some follow ups — again I’m new in this process too.
[In terms of open government] there’s part of it that is being careful with intangible assets like software. Communities know that companies throw around commercial reasons for secrecy. It’s like breathing, it becomes like ‘well, we can’t talk about this because we have a commercial reason.’ And I think we have to challenge that. So my second point here is: making sure that NDAs and anything that makes it difficult to engage with the procurement of something shouldn’t be allowed. And if any company comes to anybody with requirements for a public official or staff to sign NDAs, that should be a red flag and we need to talk about it.
I just think the last one really has to be around: before we decide to procure, can we build it ourselves? Like, how do we build a new process there? And I think that’s a digital infrastructure area in the report, because as soon as we fall into procurement, we stop considering whether we can make it ourselves. In terms of long term investment, we could be doing so much more efficient purchasing or building if we collaborate with other cities, if we collaborate globally, if we enforce open source standards as part of this digital infrastructure plan. Let’s also talk about adding to the report: how do we make sure that we shouldn’t be building this? Why are we buying this in the first place, is a really good question for this report — we need to remember that we can always build it. It’s a better investment in our labour force, a better investment in control, and often will be more efficient. We do not need the last 20 years of the government funneling money out, whether it’s to management consultants or a lot of these software vendors, this has been an absolute disaster for public value. So let’s think about why we’re procuring. Can we build instead? How do we add that to the report. Those are my top three.
Councillor Holyday: Thank you Mr. chair and for speaking to us Ms. Wylie. Points 1 and 3, and I think you just said it in the last few seconds, in my opinion, revolve around the concept of a business case. We don’t always see those at the committee because they happen within the public service. We get the output: ‘here’s the report, take it or leave it.’ Have you seen any best practices in which a government, like an elected set of officials, would become involved at the business case stage? It’s an interesting conversation in governance, and maybe there are practical thresholds. Do you have any thoughts, experiences, notes that you could share with us about that, looking forward?
Me: Yeah, and I just want to say it’s really heartening to hear you say this because this is a governance issue, you just said exactly what it is, it’s a governance issue. And I think we’re at this moment where a lot of this has become too depoliticized, and it’s actually all happening before it gets to the political decision making level. So in terms of how to instantiate some of these good practices into the public service, that’s part of what this report is about, the digital infrastructure plan should help, but in terms of engaging on the political side earlier, I think this is where there’s a lot of struggle right now with this, so I don’t have the quick answer. I have stuff that I can send around policy, but I think what you’re pointing at is the thing that I’m trying to figure out because it kind of goes back to the beginning. I’m here because I happen to get this great notification from a civic tech tool that reminded me that this meeting was on today and it’s really hard for us to engage with our elected officials about how to engage on this stuff. So more so than having a good answer for you I just want to confirm that what you’re raising is exactly what I’m concerned about too. I think we need to rebalance where the political influence on this stuff is really applied because it’s arriving at every elected official as basically done, and what I can see is a slide of political power into the public service that is technically, from a governments’ perspective, not supposed to be happening. That power was never given formally but now it’s sort of just happening [through procurement]. So, I think I just want to end by saying no great answer, but you’re right on the spot that I’d like to keep working on together as a city.
Councillor Holyday: But there is one other concept that I wanted to broach with you. I don’t know what the answer is, if there should even be political involvement at the business case stage, maybe there is, maybe there isn’t, but the one thing that is important to me is making sure that the lines of trust are clear with the public service. I mean, and I say that generically, not necessarily the Toronto public service, but we’re talking about governments elected vs. governments’ public services in general. You know, we do delegations of authority, we set parameters, we set rules, maybe there’s some room in council being clearer with what the parameters are so that the public service can do what they do to do the analysis to try to make recommendations on a business case and then follow through on them given there’s a set of limitations provided. If you ever hear about some of that governance, I’d be curious to hear about it.
Me: Definitely, and I think that, just to say that’s what we need to revisit is where is that delegated authority happening because I personally think that there’s a slide happening there. To your point about governance, elected officials, and how this all you know, works transactionally, the industry knows from a lobbying perspective that when they go to elected officials first, that starts to create a bit of muck later on, so this entire ecosystem of who talks to who — who, when, and what, with the business case, I think we should revisit because this is a captured space from the technology vendor. They know how to work the system in terms of how it is depoliticized right now. So I think that that’s a public liability. And that’s a vulnerability. So I think exploring where that line is again and maybe we can think about process to do exactly what you say. Of course there should be delegated authority, let’s make sure it is explicitly not happening because we haven’t said the thing, right? Which is where I think we are right now.
Thank you for that thought, and you’re giving me some stuff to try to come back on and write a little bit about. So I’ll follow up with everyone with anything related case studies. I’ll reach out to some of the community and see if I can share some more stuff that might be helpful. Thank you so much for the conversation and the questions.
Cllr Ainslie: (…) Thank you very much
Me: Thank you so much, have a good day everyone.