Government Operations Committee on June 10th, 2008

[Donald Powell]

We have a binder here with a lot of the evidence we have. We can leave the whole thing or we can pick out specific documents.

[The Chair, Liberal, Diane Marleau]

I'll tell you, as long as you're happy to do this.... Our researchers always like to see the paper.

[Donald Powell]

Yes, of course, and we certainly are prepared for that.

[The Chair, Liberal, Diane Marleau]

They're quite happy. Look at the smiles on their faces when they look at that stack.

Madame Faille.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

Mr. Powell, is it correct to say that the Federal Court has ruled in favour each time you've turned to it?

[Donald Powell]

On the first CITT decision, the answer is yes, they decided that CITT had been patently unreasonable. We could have gone back and re-filed that at CITT, but that didn't appear to be a promising avenue.

We did try to challenge the urgency. When Public Works declared that this contract award had to proceed because it was urgent, we tried to get an injunction to stop them from doing that. This had never been done before. Nobody had ever tried to do this. The judge sort of semi-granted us the injunction, because he didn't rule for about a month or more. So it kind of did what we wanted. In the end, he didn't grant us the injunction. His rationale was, well, CITT is going to decide this issue fairly soon, so you don't need an injunction.

That's what happened.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

So you sought an injunction because there was an exchange of correspondence for the contract to continue and the work to be done. The contract award was nevertheless suspended until things were clarified at the CITT level.

[Donald Powell]

Yes, for sure. I forget the exact circumstances, but we had an outstanding CITT complaint. CITT does what's called a stop contract award, in which they notify the department that the contract can't be awarded until the CITT ruling takes place. This is a questionable process in my mind, as all they have to do is write a memo from an ADM saying, oh, this is urgent, and then that overrules the stop contract award from CITT. So it overrules the CITT.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

The PWGSC and CITT people told us that that had never happened and that PWGSC had never circumvented a CITT decision. If there was a stop contract award order, PWGSC had to have a good reason to continue.

[Donald Powell]

Well, in terms of the urgent specification, the rationalization that was used was that the year-end was coming up. Everyone understands the year-end process—of course, that's March 31 in the government. Their argument was, well, things are busier during the year-end, and we don't want to go through this transition to the new contract during year-end, so it has to be awarded by October 31. That was the rationalization.

Now, in my view, they could have just waited until after the year-end. There are many other arguments, but this is the argument that was presented, and that's the basis. CITT has no power to make a ruling on this. When they get the memo from Public Works, that's it: the stop contract award is gone.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

I think an independent investigation should have been conducted on this contract to examine your claims and PWGSC's position and to determine exactly what happened. These suspicions of conflict of interest are quite disturbing. The fact that the Conflict of Interest and Ethics Commissioner was brought in to ensure that someone was on site to verify the process is disturbing as well. It appears from that that various provisions of the Clarity and Fairness Act seem to contradict each other. You have to have the patience to go through all those procedures. It's not easy to find your way.

As regards clarity, this committee has never examined the Office of the Public Sector Integrity Commissioner.

I believe you turned to it in the context of that contract. You submitted claims to the—

[Donald Powell]

If you're talking about the Public Sector Integrity Canada office, we did send them a lot of information. At the time, they were just being set up, so this would have been March 2007. It had existed before as the Public Service Integrity Canada office and then changed to become the Public Sector Integrity Canada office. We gave them lots of background, and there was back and forth.

In the end, they decided they couldn't investigate because these things were before the CITT. So they left open the avenue of going back there once the CITT was completed. That is the reason they didn't investigate it, because it was before the CITT.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

I have some time left and I have a brief question.

[The Chair, Liberal, Diane Marleau]

Your time is up, but as no one wants to ask any questions, we'll give you a little more.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

A number of people have explained to us their role in the new legislation put in place to ensure greater fairness and clarity. We can see that you have very extensive experience with those structures.

In light of your experience, is the procurement structure put in place to help suppliers adequate? What are the major deficiencies at this time?

[Donald Powell]

Well, I think the fundamental process is probably good.

I think what I've seen here is probably different from anything else I've ever experienced, in that senior people probably have the power to get around a number of things if they want to. We can see this in terms of access to information; if we do an ATIP request, it isn't the ATIP people who decide whether it's released, but the person who holds the document. As long as that structure remains that way, people who are going to be embarrassed by something are just not going to release it.

So that's a tremendous weakness, as it all falls within the same basic structure in the organization. You probably need to have a separate entity with real power to deal with these things, because if we're in fact right that these scores were tampered with, of course nobody is going to volunteer that information. Somehow you need to separate those pieces out.

The second and related issue is that of implementing the contract. When you compete, you expect to deliver what you're promising to do. There really is no mechanism for challenging that; those decisions are just made in the department. The only way you can challenge them is a lawsuit, and I think that's not a good thing either, because it is open to an individual manager saying, well, I like those guys and I'm just going to let them off the hook. It's pretty clear that's what happened in the case of ETS.

[The Chair, Liberal, Diane Marleau]

Thank you.

Thank you very much, Mr. Powell.

I think what we'll do is take a very short break and come back to our first item on the agenda. We'll break for five minutes—no more.

[The Chair, Liberal, Diane Marleau]

I call the meeting back to order.

We are going to resume debate on the motion from Mr. Holland, relating to a study on the “Report on the Investigation into Unauthorized Disclosure of Sensitive Diplomatic Information”.

I wasn't here when this was last debated. I don't know who was asking to be recognized and who hadn't been, so I'm going to take names. Who would like to speak to this resolution?

Mr. Warkentin and Mr. Albrecht.

[Chris Warkentin, Conservative, Peace River, AB]

I was speaking when we last finished here. I was making the point that specifically there's a report before us. There is an investigation that went forward. If people have questions to ask, it's fine if they want to ask them, I guess, but I'm not certain exactly what is being alleged here. And I'm not exactly sure how we're going to find any different information from what the experts have found.

It's one thing for us, as committee members, to go on a witch hunt, but it's something completely different to try to circumvent experts' opinions or the experts' investigation. Unless we have something to bring forward that will contribute, I'm not sure what the point of this is.

[The Chair, Liberal, Diane Marleau]

Thank you, Mr. Warkentin.

Mr. Albrecht.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Madam Chair, I made the point at the last meeting that this is another example of derailing important studies that we're doing as a committee. It's derailing the work of Parliament. And I think it's just slowing down, bogging down, and creating more opportunity to stop the real work that we were elected to do here. So I'm opposed to the motion.

[The Chair, Liberal, Diane Marleau]

Mr. Kramp.

[Daryl Kramp, Conservative, Prince Edward—Hastings, ON]

Actually, my words are, very simply, the same as Mr. Albrecht's, and I would just ask that we call the question.

[The Chair, Liberal, Diane Marleau]

Thank you.

All those in favour of Mr. Holland's motion.

Mr. Holland, are you in favour of your own motion?

(Motion agreed to [See Minutes of Proceedings])

[The Chair, Liberal, Diane Marleau]

The motion passes, so therefore it gets added to the long list of jobs that are before this committee. Obviously we won't get to it in this sitting.