The City of Toronto PayIt Procurement: Freedom of Information Requests, Fairness, and Transparency V
A post in a series to understand and assess the procurement process followed for PayIt. This post is a straight copy/paste of a thread of tweets — this is an archival post to cover tweets from April 9-May 20 2022. *process note: when I did this transfer from twitter to medium a whole bunch of tweets got duplicated with copy/paste method. have read, and think i fixed it, but if any are out of order/removed it’s my error and i’ve got an archive.
coming up on one year since PayIt went to (and was approved by) Toronto City Council (May 5, 2021). am reviewing the council session today. item starts at 1:08:24. Council motions were passed to increase accountability for the deal (and others) in future: https://www.youtube.com/watch?v=VdPUpqOrGtE&t=4107s
starts with Cllr. Carroll. she establishes, by asking the city manager, that it is Council’s role, in all procurement and purchasing, to advise and provide oversight in the awarding of contracts that come to the council agenda. City manager agrees — yes, this is their role.
next comes a thing that was A BIG DEAL part of the tone of prior executive committee meeting on PayIt. Carroll seeks, via city manager, to separate out idea that Council can ask questions about the procurement process, that they can critique it, without inherently impugning staff
will stop there for today. in this tension, in the cultural norms that define relations between council and staff, lies trouble for public tech procurement. what this culture is like city to city/level of govt to level of govt warrants attention. public admin ethics in practice.
in March 2021, I contacted Ombudsman Toronto to file a complaint about PayIt. I had never filed a complaint with them before, so it opened a door to a lot of learning about Toronto’s four accountability offices that I’ll share in posts to come. https://ombudsmantoronto.ca
last week I was informed that my complaint has been transferred to the Auditor General of Toronto for their consideration. https://www.torontoauditor.ca/
moving this to AG has two good elements. first, the transaction is valued at tens, potentially hundred, of millions of dollars that are being siphoned off Toronto residents. Good to have auditors look at financial rationale/benefits accrued to City defined by contract negotiation
two, they have oversight of the Toronto Public Service By-law, which creates a framework to help hold staff accountable for their actions in relation to the management of public assets. https://www.toronto.ca/city-government/accountability-operations-customer-service/city-administration/toronto-public-service-by-law/
lastly, related/unrelated: the legality of the city going into business with PayIt while also being a customer still confounds me, from a good governance perspective.
this all has me wading into the municipal code as well. “The Toronto Municipal Code is a compilation of by-laws organized by subject. Each chapter is a by-law. For example, Chapter 591 — Noise; or, Chapter 447 — Fences.” https://toronto.ca/legdocs/bylaws/lawmcode.htm
chapter 3 is accountability officers: https://www.toronto.ca/legdocs/municode/1184_003.pdf
update on PayIt FOI#1 (scope of which is below) — City is extending it by 60 days.
this is about understanding the processes that exist/how they were followed when working with public IT assets outside of a contract.
this FOI request has me thinking about the information and record keeping architectures that would support much more open government. there is a tonne to do here and no inside incentive.
back into PayIt timeline creation this am. here’s one crossover between PayIt and COVID Alert app world: if certain government decisions about tech tendering + implementation are legal (this is an if), where are they made legal? what are necessary adjustments, if any, for future?
one of many modes of intervention for govt accountability re: tech is holding govt activity up against *existing* law. here we can find weaknesses and consider adjustments. the benefit and efficiency here is leaning into and using pre-existing accountability institutions.
the gap that may need to be closed here is not so much needing new policies or laws, but figuring out how to shape and fit new harms into the construct of older accountability mechanisms and practice.
got email today about FOI #2 for PayIt, the one for documentation on how the Partnerships Office implemented the City’s unsolicited proposal policy. to maybe get PayIt’s unsolicited proposal will have to wait up to 60 days for PayIt to ok release (3rd-party notification process)
probably going to remove it from the FOI request and file for it separately. I had sent an email a while back asking the Partnerships Office for it, which went quiet, likely due to this process.
have removed PayIt’s unsolicited proposal from FOI#2. will file a new and separate request for it, which will be FOI#4.
if I stop and think about this, not great the City waited so long to potentially add 60 day window to this FOI process. if they would have asked me this at the beginning, think 60 days would have already passed. have to go back and look. lesson learned, could have flagged it too.
received FOI #2 results now. the one that sought documentation for how the City followed its unsolicited proposals policy to decide PayIt did not have to go to standard tender. just left a message with City because if this is not a miscommunication/partial file I don’t know what.
this is what I asked for:
re-reading policy for nth time. trying to figure out how PayIt went from unsolicited proposal to sole source recommendation when policy says unsolicited proposals must go to council to approve challenge if there’s no std procurement? totally missed this. https://www.toronto.ca/business-economy/doing-business-with-the-city/unsolicited-quotations-for-proposals-policy/#:~:text=An%20unsolicited%20quotation%20or%20proposal,readily%20available%20from%20other%20sources
today i learned that staff decided not to follow one part of the unsolicited proposals policy when they recommended PayIt as a sole source. policy says all unsolicited proposals, if viable, go to swiss challenge. staff rationale was pandemic. wonder if they told the councillors.
i’m going to re-read the first staff report, but if they didn’t tell the councillors, how would the councillors know? there are interesting public administration questions emerging at this point. what can we the public do if the public service doesn’t follow policy?
based on the records returned so far, staff deviated from the unsolicited proposals policy’s guidance. have requested the clerk’s office check on results returned via FOI that should have provided documentation about how and why they decided to do so.
kicking around at the mechanisms for accountability/redress for how public policy is implemented, using this procurement as an example, is a bit of a bad wake-up call in terms of what it might mean about the genre as whole.
reread the staff report. no explicit mention in it from staff that they are deviating from the unsolicited proposals policy by recommending a sole source. so one question here is, when staff deviate from procurement policy, do they have to tell council?https://www.toronto.ca/legdocs/mmis/2020/ex/bgrd/backgroundfile-148995.pdf
waiting on questions sent to the clerk re: FOI #2 to understand how much staff deviated from the policy. 3 key checks on unsolicited proposals are 1) process to verify it shouldn’t go to std procurement 2) eval team review then 3) ask council re: swiss challenge (not sole source)
as of now, we know the third check was skipped as staff sought sole source. unclear what happened with the first two. records initially returned for FOI #2 did not describe how 1 or 2 was dealt with by staff, which is why I’m seeking clarification/asking if records were missed.
final note today: lobbying on this file started January 2019. unsolicited proposal was submitted August 30, 2019. the lobbying was mostly with staff, minimal with elected officials. this gets us into questions about how the unsolicited proposal was shaped prior to submission.
today is five business days since clerk’s office has asked partnership office if they missed any files in the results they provided for FOI#2. these results are about 1) how they decided PayIt didn’t have to go to std procurement and 2) the evaluation process to assess proposal
there were zero records returned with information about these two matters, save for one mention that staff expected their process to take two weeks once they received the unsolicited proposal.
reminder that these are the criteria that staff were to have used to make a decision about not taking PayIt to std procurement. policy is clear that: “Unsolicited quotations or proposals should not be allowed to circumvent the City’s procurement process” https://www.toronto.ca/business-economy/doing-business-with-the-city/unsolicited-quotations-for-proposals-policy/#:~:text=An%20unsolicited%20quotation%20or%20proposal,readily%20available%20from%20other%20sources
staff deviated from policy by recommending sole source. had to FOI to get Gartner “market assessment” (was bold to call it that, upon seeing it) that was used as part of decision rationale. now chasing FOI to understand what else informed the decision. all not great, process-wise
today is ten business days since clerk’s office has asked partnership office if they missed any files in the results they provided for FOI#2. these results are about 1) how they decided PayIt didn’t have to go to std procurement and 2) the evaluation process to assess proposal