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muniSERV Free Webinar – April 18th 2017

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Tips to Get Noticed and Earn More Business:
Join us Tues April 18th at 11 am EST for this free, one-hour webinar:
Susan Shannon, Principal, muniSERV.ca will share valuable tips for getting noticed by municipalities and earning more business. See more about her presentation, below. She’ll be followed by Jay Smith, senior Projects Manager, bids&tenders who will demonstrate then answer questions on how to use bids&tenders to subscribe to, then manage, your online bids.

More about the webinar:
The Two-Step Plan to Getting Noticed and Winning More Municipal Business featuring Susan Shannon, Principal, muniSERV.ca.
It is a known fact that municipalities share success and horror stories about experiences they have had with a particular vendor, consultant or professional they’ve used. They quite literally pick up the phone and ask other municipalities, “Who did you use?”. But as a new vendor, consultant or professional service provider trying to build your business and get municipal work, how do you go about becoming part of one of those, “Who did you use”, conversations in the first place?
This session draws on Susan’s past experience as a municipal administrator and provides a 2-step plan to help you find work, get noticed and win more municipal business. In preparation for this session you might like to read a helpful article, written by muniSERV professional member, JDManner Consulting, Top 10 Rules for Successful Responses – Requests for Proposal (RFP) 101

Questions? Email us and we’ll get back to you ASAP.

Register now to be guaranteed a free dial-in to the webinar. Limited time offer reminder bids&tenders now offers 10% off a new, annual muniSERV professional membership. Enjoy a better way to connect with public sector clients to market your professional services. Learn more.

*bids&tenders is a member of the muniSERV strategic partners network.

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15 Simple Tips to Write Better Today

(article shared from Bidsketch)

The written word has never been so powerful.

Whether it’s through emails, text messages, business websites, or something else, it frames many key interactions with prospects and customers.

Everyone is a writer these days. Forget the fact you might not be getting paid to do it. Chances are you still write a good deal. If you want to succeed in today’s ultra-competitive environment, it’s imperative you express your message clearly and effectively. You must be understood!

Here’s the good news: even if you dislike writing, there are plenty of practical tips you can learn to create an immediate impact on your prose. With just a little care and attention, you can apply them without too much trouble. No expensive writing courses or seminars needed.

Writing Is More of a Craft Than You Might Think1

Many people see writing as an art. Writing well is for geniuses like Hemingway and Faulkner. It’s viewed as something that can’t be learned – like height or hair color.

But the reality is writing is more of a craft than you might know. You don’t have to put in thousands of hours and become a master. If you can grasp the tools of the trade – tools all types of writers rely on – you can communicate more effectively with your leads and customers.

Here are some of the most important tips you can apply and make an immediate impact:

  1. Active Voice

This is one of the most common writing tips around. Unfortunately, it’s also one where a lot of people screw up!

Sentence structure matters. In English, we prefer active sentences instead of passive ones.

Here’s an example of a passive sentence:

The hurricane is predicted to be the largest in decades by meteorologists.

There’s nothing inherently wrong with passive sentences. They just tend to be wordy and indirect: not a great recipe to get people’s attention. A simpler active construction (which goes subject, verb, then object) is easier to understand.

Here’s the same example reworked to be active:

Meteorologists predict the hurricane will be the largest in decades.

  1. Eliminate Fluff Words1

Many writers make sentences longer than necessary because they pack in words which don’t add any real meaning. And when you factor in readers’ shrinking attention spans, words that don’t add meaning become liabilities.

Here are a few common fluff words and phrases to look out for:

  • Basically
  • Essentially
  • I might add
  • It is interesting to note
  • Just
  • Really
  • The fact that
  • Very

And now, a fluff-filled example in all of its terrible glory:

The fact that Richard, the office manager, just leaves 30 minutes early every day makes me very angry.

Here’s how you might rewrite it:

It makes me furious when Richard, the office manager, leaves 30 minutes early every day.

This variation gets the point across faster than the first. There are fewer words and chances for confusion – exactly what keeps people reading.

  1. Clarity Trumps Cleverness

It’s great for writers to have a large vocabulary as their disposal. Every word is a tool, and it’s always an awesome moment when you pull out the perfect one to convey your message.

But using big words when small words would do slows down the reader. It doesn’t make them view you as smarter; using unnecessary complex words actually makes them see you as small-minded.

If you have to choose between being clear and clever, choose clarity every time.

Here’s a short list of corporate speak words along with simpler options you could use to replace them:

  • Facilitate (help)
  • Enable (allow)
  • Disseminate (pass out)
  • Implement (do)
  • Sufficient (enough)
  • Utilize (use)

You get the idea.

  1. Avoid Weak Adjectives

Vivid descriptions separate content we love from the boring stuff. To create those descriptions, writers need a specific set of tools: adjectives.

We use adjectives all the time. That might explain why so many of them come off as flat and lifeless. How many times have you read a news article featuring a “cold winter” or a “corrupt politician”?

These weak adjectives are used so often you probably skip right over them. They don’t stand out; they’re anything but compelling. Sometimes writers make things even worse by tacking on fluff words, like “very” or “rather.”

Opting for stronger adjectives adds dramatic flair – the kind of flair that makes your content memorable.

Here are some weak adjectives and stronger alternatives:

  • Big (enormous, gigantic)
  • Cold (frigid)
  • Cute (adorable)
  • Gross (repulsive)
  • Hot (stifling)
  • Irritating (obnoxious)
  • Scary (terrifying)
  • Small (minuscule, tiny)
  1. Favor Details over Vague Language

This tip flows nicely from the last. Using specific details doesn’t just make your content more engaging; it’s also another way to avoid weak, boring adjectives.

Writers paint pictures with their words. Details make those pictures vivid in readers’ minds. A few well-chosen details are all it takes to make a reader feel like he or she is really there.

Here’s a general language example:

A long commute was one of the biggest motivators to quit my job and start my own business.

Now, here’s the same idea with specific details:

I dreaded the moment that alarm clock rang. That sound meant I would soon spend 50 minutes trapped in my car, flipping between awful radio morning shows, swerving around potholes and drivers determined to see how little space they could leave behind my bumper. All that – just to get to a job that didn’t inspire me but sapped my energy.

Which version resonates stronger with you?

How can you be more specific next time you write? Can you give any concrete examples? If so, you’ll make more of an impact than sticking to vague language.

  1. Cut Down on “To Be” Verbs

Many writers like to use variations of “to be,” a helping verb (also called an auxiliary verb). This is perfectly fine every one in a while. But if you use them too often, the result is a longer, more complex sentence structure.

Rephrasing “to be” language will help you cut out unnecessary words while still retaining meaning. Here are some examples of sentences using “to be” variations:

  • “John is running across the street.”
  • “I am wondering if the restaurant is still open.”
  • “They are the winners of the award this year.”

Here are those same sentences simplified by stripping out “to be”:

  • “John runs across across the street.”
  • “I wonder if the restaurant is still open.”
  • “They won the award this year.”
  1. Vary Your Sentence Length

Typical business writing advice urges us to always use short sentences. Bloggers are notorious for this. Use a few words. Period. Move on. Make your next point.

Short sentences are powerful. But when you pack too many of them together, the writing gets choppy. It sounds like it’s written by a machine, not a person. Readers’ eyes start to glaze over.

You can keep people interested by varying your sentence length, consciously creating a “rhythm” to your prose. Here’s an awesome example of the concept from author Gary Provost:

This sentence has five words. Here are five more words. Five-word sentences are fine. But several together become monotonous. Listen to what is happening. The writing is getting boring. The sound of it drones. It’s like a stuck record. The ear demands some variety. Now listen. I vary the sentence length, and I create music. Music. The writing sings. It has a pleasant rhythm, a lilt, a harmony. I use short sentences. And I use sentences of medium length. And sometimes when I am certain the reader is rested, I will engage him with a sentence of considerable length, a sentence that burns with energy and builds with all the impetus of a crescendo, the roll of the drums, the crash of the cymbals – sounds that say listen to this, it is important.

  1. Read It Out Loud

Editing is what makes writing truly shine. Too many of us skip one of the most important steps; we don’t read our text out loud.

Often, sentences that look good on paper unravel when you read them. So give this tip a try. Find anything difficult to get through? Places where you stumble?

Those obstacles are the perfect opportunities for revision.

  1. Delete “That”

When editing your writing, you could do far worse than hitting Control-F and scrapping “that” every time it shows up.

This tip isn’t a commandment. In some situations, you need to keep “that” for a sentence to still make sense. But 95 percent of the time it’s just a filler word. Get rid of it, and strengthen your prose.

Here are a few before and after examples:

  • “I forgot that the gym is closed today.”
  • “This is the best book that I have ever read.”
  • “I know that you’re busy.”

Now, with “that” removed:

  • “I forgot the gym is closed today.”
  • “This is the best book I have ever read.”
  • “I know you’re busy.”
  1. Delete “In Order To”

Here’s another filler that muddies up sentences and slows down readers. There’s always an easy way to rewrite it to make the sentence shorter and more powerful.

Here are a few examples:

  • “You have to work hard in order to succeed.”
  • “Get there early in order to find a good seat.”

Here are the revised versions:

  • “You have to work hard to succeed.”
  • “Get there early to find a good seat.”

You cut the unnecessary word without losing the meaning.

  1. Avoid Wishy-Washy Phrases

Some writers pepper in tons of filler phrases without even realizing it. Maybe they’re trying to be polite or not offend any of their readers. But what they’re actually doing is weakening their content.

Here are a few wishy-washy phrases that crop up over and over again:

  • A bit
  • I believe that
  • I feel that
  • I think
  • It’s my opinion
  • Sort of

Most of the time you can delete these without thinking twice.

  • “I feel that this is a great plan” becomes “This is a great plan”
  • “I believe that this sort of needs some improvement” becomes “This needs some improvement”

The result: crisper, more powerful prose.

  1. Trim the Fat (Edit) Ruthlessly

Many of us make great points in our writing, but they’re hard to find. Busy readers can’t get past the filler language, unnecessary repetition, and rambling to dig out the gems.

The more you can edit these out of the end product, the easier it becomes to communicate (and persuade) effectively. It’s time to get ruthless. Trim all the fat; don’t force readers to slog through it.

Here are a few before and after examples:

  • “I really have nothing to say at all today.”
  • “The unsolved mystery is preventing the town from reverting back to normal.”
  • “I was confused by the plot of the movie.”

Now, the fat-free versions!

  • “I have nothing to say today.”
  • “The mystery keeps the town from returning to normal.”
  • “The movie’s plot confused me.”
  1. Don’t Overuse Adverbs

Stephen King says the road to hell is paved with adverbs. These words (which usually end in “-ly”), are used to describe when, where, why, or under what conditions something happens.

Adverbs are fine every once in a while. But overusing them is a symptom of lazy writing. In many cases, writers can eliminate them by choosing more precise language.

Here are a few examples with the adverbs in bold:

  • “The sun set slowly over the horizon.”
  • “He closed the door firmly.”
  • “She walked slowly toward the poorly-maintained house.”

And here they are revised to slash the adverbs:

  • “The sun set over the horizon.” (adding “slowly” doesn’t do anything for the sentence.)
  • “He slammed the door.” (chose a stronger verb)
  • “She trudged toward the dilapidated house.” (chose stronger verb and adjective)

Sometimes you’ll be able to just scrap the adverb without changing the sentence’s meaning. Other times you can avoid them by choosing stronger, more precise language.

  1. Avoid Cliches (Like the Plague!)

Hopefully the irony in that heading made you smile.

Cliches are comfortable – so comfortable that whenever you use them you never have to wonder if you’re being understood. Readers everywhere are familiar with them. But, because they see them everywhere, they gloss right over them.

Have you read something lately with any of these phrases?

  • “By hook or crook”
  • “Calm before the storm”
  • “Content is king”
  • “Head and shoulders above”
  • “Hook, line, and sinker”
  • “In the same boat”
  • “Stick out like a sore thumb”
  • “The money is in the list”
  • “Writing on the wall”

I bet you have! It’s so easy for these to slip into our writing. They’re nice stand-ins for when you can’t think of something more creative to say.

If you make the effort to avoid cliches and come up with your own vivid metaphors, you’ll develop a distinctive voice. Your content becomes more compelling. And you set yourself apart as someone worth paying attention to – someone with original thoughts.

  1. Re-Frame the Negative into The Positive

Affirmative sentences tend to be clearer than negative ones. While the meaning of both versions is the same, you can’t afford to bog down readers with a poor delivery. Things get especially confusing when you use more than one negative in the same sentence.

Here are a few examples to see what I mean by a negative sentence:

  • “Don’t keep taking the medicine unless dizziness doesn’t stop within three hours.”
  • “Not many people can swim a mile.”
  • “The committee did not consider the facts.”

You can rewrite these sentences in the affirmative to add clarity:

  • “Stop taking the medicine unless dizziness continues for more than three hours.”
  • “Few people can swim a mile.”
  • “The committee ignored the facts.”

There’s no obligation to rewrite every single phrase. Sometimes the meaning is clear enough, and changing it to an affirmative would complicate things. The main thing here is to always be aware how you’re framing your message. In most cases, affirmative statements are a simpler choice.

Over to You

You don’t have to be Maya Angelou to write in a way that engages and persuades. Applying the tips above is straightforward. The impact on your business communications is immediate. Even if you just pick a few of them, you’ll be paying attention to things that many writers overlook. Readers will take notice.

What’s the best writing tip you’ve ever heard? Why? Leave a comment below and let us know!

About Corey Pemberton – Corey Pemberton is a freelance copywriter and blogger who helps small businesses and software startups get more traffic and conversions online. You can find him on his website or follow him on Twitter.

 

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Creating Leadership Energy is an Inside Job

By Jim Clemmer

You can’t impassion others about their work unless and until you’re impassioned about yours. Creating leadership energy is an inside job. The spark that ignites the leadership energy you bring to your team or organization comes from within you. But you can’t give energy if you don’t have it. And it’s hard to fake what you don’t feel. That will cause you to resent your job and eventually the people associated with it. It also sends everyone’s increasingly sensitive “Phony Meters” over the red line. All of this drains even more of your energy and makes your work truly work.

 

Have You Got Work, or Has Your Work Got You?

If you’re going to be an effective energy leader, then your work can’t be work. You need a job that isn’t a job, it’s a joy. When you love what you’re doing, you never have to go to work again. If I didn’t love the personal and organization improvement field, I wouldn’t study, note, and file hundreds of books and magazines each year. I won’t produce the dozens of columns and articles I’ve written. If it were truly work, you couldn’t pay me enough to disrupt our family life and invest the huge amount of time and fussy detailed work involved in writing books. If I didn’t love designing and delivering improvement workshops or speaking at meetings and conventions, travelling to, and standing in front of, yet another group would be true drudgery.

 

I am often asked how I develop the discipline to research, prepare, write etc. What discipline? That’s assuming I have to force myself to do this work. On the contrary, my problem is disciplining myself to not let my work completely take over my life. That’s because my work is highly aligned with my life purpose, vision, and values. So I am not working today, I am using this day to move one step closer to fulfilling a major part of why I exist.

 

You need to either find the work you love, or learn to love the work you have. Get passionate or get out. This is where many “wanna-be leaders” succumb to the Victimitis Virus. “How can I do my life work when I am working flat out just to pay the bills now?”, they sniffle. Well, if you’re current job isn’t energizing you so you can energize and lead others, you have four choices; 1) do nothing but wish for your fairy job mother to magically appear and straighten out your life; 2) get out of management so you stop dragging others down to your low energy level; 3) figure out what your personal vision, values, and purpose are and transform your current job into your life work; 4) figure out what your ideal job is and go find or create it.

 

The good news is you can find or create your ideal job. The bad news is, if you haven’t done much thinking in this area already, it takes a lot of hard, agonizing work to figure out where you want to go and why. Then the real time consuming and most difficult effort is transforming yourself into that person, developing the skills you need, capitalizing on and creating your opportunities to move forward.

 

For over three decades, Jim Clemmer’s keynote presentations, workshops, management team retreats, seven bestselling books, articles, and blog have helped hundreds of thousands of people worldwide. The Clemmer Group is the Canadian strategic partner of Zenger Folkman, an award-winning firm best known for its unique evidence-driven, strengths-based system for developing extraordinary leaders and demonstrating the performance impact they have on organizations. Check out www.clemmergroup.com for upcoming webinars and workshops.

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What Does a Bidder Conflict of Interest Mean to Your Organization?

by Lise Patry, ba sc (chem eng), llb, icd.d, Patry Law

Why is it that the person with a conflict of interest is often the last to see it? Maybe it’s due to a fundamental tendency among humans to deny they are in a conflict or maybe they don’t understand what it means to be in a conflict. There’s definitely some fuzziness around the concept of conflicts so it’s not surprising that bidders often leave conflict-of-interest forms blank even when they shouldn’t.

What is a “bidder conflict of interest”?

Merriam-Webster’s dictionary defines a conflict of interest as “a conflict between the private interests and the official responsibilities of a person in a position of trust.” This definition is consistent with how a conflict of interest is traditionally understood. While this traditional definition fits well within the corporate law and ethics contexts, it doesn’t apply perfectly to the competitive bidding process – potentially creating fuzziness for bidders.

In the competitive solicitation process, procurement professionals generally understand a bidder conflict of interest as a situation that may give a bidder an unfair advantage over the other bidders. This advantage could be access to information that isn’t available to other bidders or it could also be that the bidder has a personal relationship that could bias the evaluators.

Why is this important? Allowing a bidder with a conflict of interest participate in the process could represent a breach of the owner’s duty of fairness and could compromise the integrity of the procurement process, so everyone involved in the solicitation has an interest in ensuring the definition of conflict of interest is clear to bidders from the outset. Failure to do so could lead to bid rejection or a legal challenge from a losing bidder complaining about the winning bidder’s unfair advantage.

What’s the best way to keep conflicted bidders out of the process?

The best way to keep conflicted bidders out of the process is to define what your organization considers a ‘bidder conflict of interest’ so that the circumstances that will lead to disqualification are crystal clear to potential bidders.

The definition of “conflict of interest” could take many forms. For example, a procuring entity may define a disqualifying conflict of interest in the RFP by stating “all parties who were directly or indirectly involved in preparing the RFP shall be deemed to be in a conflict of interest and ineligible to bid”. 2

Alternatively, some entities may permit bidders to use parties involved in the preparation of an RFP as subcontractors under certain specified conditions.

Once the parameters of the definition are defined, the entity should communicate it to prospective bidders by setting out a clearly drafted definition in the RFx and provide examples of the type of conflicts that will lead to disqualification. Armed with a clear understanding of what will keep them in the process, bidders will be better able to avoid an unintended pitfall.

Is there a difference between apparent, potential and actual conflicts of interest?

Yes, there is a difference between what is an apparent, potential and actual conflict of interest – and the distinction is important. Employees, corporate directors and public officials are generally expected to disclose all of these conflicts of interest and to recuse themselves from decision-making where there is any conflict.

In competitive bidding, however, the default threshold that will lead to disqualification is not this clear. Courts and the Canadian International Trade Tribunal will look to the terms of the RFP when considering a dispute over a bidder conflict of interest. If the RFP says apparent conflicts will result in disqualification, then that is the threshold the courts will apply.

What if the RFP is unclear on the type of conflict of interest that will lead to a disqualification?

If the RFP is silent on conflicts of interest or unclear on the types of conflicts that will lead to disqualification (apparent, potential or actual), the owner is assuming a heavy responsibility. In the absence of clarity, it will be up to the owner to determine, often only after the bid is submitted, what qualifies as the type of conflict of interest that will tip the scales in favour of rejection.

In the absence of a clear definition, the prevailing view at Common Law is that there needs to be a reasonable apprehension of bias/conflict before an owner can validly reject a bid. According to the analysis applied by the courts, something more that optics is needed; owners must be able to explain what factual circumstances gave rise to the reasonable apprehension of an unfair advantage or conflict.

What’s the takeaway?

The common definition of the term ‘conflict of interest’ doesn’t fit the procurement context perfectly so owners shouldn’t assume all bidders will naturally understand what to disclose on a conflicts disclosure form. Without a clear definition in the RFx that includes examples, some bidders are sure to misunderstand what’s expected. This will leave owners in the unenviable position of having to teach them about conflicts of interest in procurement the hard way – by disqualifying the bid.

Lise Patry, an instructor with NECI, is a lawyer and former business executive with a strong background in technology and more than 20 years of business and legal experience in the public and private sectors. As principal of Patry Law, in addition to general law, she offers virtual counsel services and specialized expertise in contracts, licensing, government procurement and corporate governance. She can be reached in Ottawa at (613) 730-5959 or [email protected]. This article originally appeared as a series of blog posts in September 2016 at patrylaw.ca. It has been adapted and is used by permission. 3

Readers are cautioned not to rely upon this article as legal advice nor as an exhaustive discussion of the topic or case. For any particular legal problem, seek advice directly from your lawyer or in-house counsel. All dates, contact information and website addresses were current at the time of original publication

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7 Reasons Change and Development Programs Fail

By Jim Clemmer

A long list of studies shows that 50 – 70% of leadership, culture, and organization change and development efforts fail. For example, a Harvard Business Review article by Michael Beer and Nitin Nohria on “Cracking the Code of Change” concludes, “the brutal fact is that about 70% of all change initiatives fail.”

These efforts typically include:

  • Improving internal/external customer service
  • Boosting health and safety
  • Executing organizational changes
  • Enhancing productivity/efficiency
  • Strengthening leadership skills
  • Lifting morale/engagement levels
  • Strengthening teamwork/team building
  • Reducing turnover and absenteeism
  • Increasing quality
  • Implementing Lean/Six Sigma

I have reviewed research and our experiences in helping dozens of organizations with their change initiatives. Success or failure ultimately rests with the organization’s senior leadership team. Here are the common problems that trap many leadership teams and become the root causes of their failed change and development efforts:

  • Speed Traps and Tyranny of the Urgent – flooded by e-mails, endless meetings, and crisis management, many leaders become reactive micromanagers and lose sight of the big picture.
  • Partial and Piecemeal Programs – leadership training, succession planning, customer service, six sigma, safety, talent/performance management, IT systems, and such are disconnected and disjointed.
  • Leadership Lip Service – organizational leaders send contradictory messages about core values or embracing change by their inconsistent actions and behaviors.
  • Not Building Change Capacity – many change and development efforts fail to engage the hearts and heads of key leaders and frontline staff and don’t energize and equip them to make it happen.
  • Teams Not Pulling Together – strong leaders drive change in their “silo” and work at cross-purposes. This undermines both the team and the change/development effort.
  • Communication Breakdowns – leadership teams aren’t united in strategic priorities, key messages, behaviors that model the vision and values, and rigorous implementation planning.
  • Failing to Follow Through – strategies and development plans can quickly lose focus when they don’t have a robust implementation process engaging key teams with a disciplined follow through process.

How many of these traps are snaring your senior leadership team? What are you doing to avoid falling into these sinkholes?

Taking the team offsite for a few days can have a major impact on avoiding these problems. An offsite retreat can also lay the foundation to become one of the 30 – 50% of organizations with a very high and lasting impact from their change and development work.

 

About Jim Clemmer

For over three decades Jim Clemmer’s keynote presentations, workshops, and management team retreats, and seven best-selling books translated into many languages, articles, blog, and newsletters have helped hundreds of thousands of people worldwide. The CLEMMER Group is Zenger Folkman’s Canadian Strategic Partner. Zenger Folkman is an award-winning firm best known for its unique evidence-driven, strengths-based system for developing extraordinary leaders and demonstrating the performance impact they have on organizations.

 

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Municipality Unfair in Sale of Property? You Be The Judge.

Test your understanding of fairness in this recent case from Nova Scotia.

In 2012, the Halifax Regional Municipality (HRM) issued an RFP for the purchase and redevelopment of a surplus elementary school property. Jono Developments Ltd. and several community groups submitted proposals. There is evidence that the HRM closely followed the terms of the evaluation process laid out in the RFP, which allocated 20 percent of the weighting to the financial offer. Following evaluations, the HRM approved sale of the property to Jono.

Around the time the sale to Jono was approved, the community groups discovered that the HRM had passed a “Policy and Procedure for Disposal of Surplus Schools” in 2000. Among other steps, the HRM was required under the policy to first assess and evaluate any proposals from community groups or grant applications and, if none were received or none were supported by the Community Grants and Partnering Program under the HRM, then the HRM was to take steps to seek Council approval to put the property on the market.

Compelling evidence was presented that the HRM had not tested the policy since its inception, and in fact was not aware that it even existed until challenged by the community groups following the approval of the sale to Jono. When the HRM became aware of the policy, which clearly had not been followed in this instance (or in any of the previous disposals of 18 other surplus school properties), the HRM rescinded its decision to sell to Jono, made a motion to rescind the policy and, then, passed a third motion to sell the property to Jono.

The HRM was also enabled under its Municipal Charter to “sell property at market value when the property is no longer required.” The appraised value of the property was listed in the RFP as $4.3 million, based on a valuation report that provided three scenarios:

  • Market value of property as is: $1 million
  • Prospective market value – maintain old school/redevelop remainder: $3 million
  • Prospective market value – demolish all buildings and redevelop: $4.3 million

Jono had submitted an unconditional financial offer of $3 million for the property “as is,” to be increased by increments of $75,000 over the highest bid to a maximum of $4 million. In other words, Jono offered to pay $3 million if there were no competing bids, and up to $4 million if there were. Jono also provided a slightly higher option that was conditional on certain development approvals. 2 Several community groups also submitted proposals, each offering a purchase price of less than $3 million. The HRM approved the $3 million offer from Jono. As shown by the HRM’s evaluation process, Jono had received the highest score in the RFP process, in part because of its financial proposal.  

  • Pursuant to a Judicial Review application by the community groups, in 2012, the N.S. Supreme Court set aside the sale to Jono on the basis that the HRM had breached its duty of fairness to the community groups by not following its own policy, and further, that the HRM’s interpretation of “market value” was unreasonable, so the HRM had breached the Charter by selling the property below market value. The Court also ordered Jono to pay a portion of the costs awarded. Jono appealed the decision, and the matter was heard by the N.S. Court of Appeal in May 2014.
  • In the HRM’s view, “market value” is the price the market will offer, so it therefore believed that it was complying with the Charter. 

What would you decide in this case?

Reprinted from The Legal Edge Issue 112, October – December 2015

Readers are cautioned not to rely upon this article as legal advice nor as an exhaustive discussion of the topic or case. For any particular legal problem, seek advice directly from your lawyer or in-house counsel. All dates, contact information and website addresses were current at the time of original publication.

National Education Consulting Inc.

975 B Alston Street, Victoria, BC V9”A 3S5

Phone: (250) 370-0041   Toll Free: (888) 990-7267

www.neci-legaledge.com       [email protected]

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Being a Strong Leader Despite a Bad Boss

“…At one point, I had an extraordinarily difficult boss, who could literally drive you into tears. And it was easy to convince yourself to allow the fear that naturally arose to, if not paralyze you, certainly greatly restrict what you did, and the risks you were willing to take. And I think coming to grips with that was not an easy one…I decided life was too short to hide in the corner and worry about this guy. And I also decided that I was right, and he wasn’t.” — John Kotter, leadership author and Harvard Business School professor

Strong leaders don’t allow themselves to be victims of a bad boss. Choosing to do that is like choosing to hang wallpaper with one arm tied behind our back. Many managers lose the “boss lottery” and, through no fault of their own, end up reporting to an ineffective executive. We may not be able to choose our boss, but we can choose how to respond to him or her. Good leaders refuse to be a victim of their boss’s weaknesses. They don’t let a dumb boss make them act dumb. They know that the worst thing they can do is to sabotage their careers just to spite the boss.

Unless the boss is so bad that a bigger career decision (i.e. looking for a new job) is called for, a strong leader tries to make the best of a difficult situation. What can I learn from this boss? Sometimes a bad example – of what not to do and how not to behave – is very instructive! Keep in mind, too, that your boss may not be as entirely bad as you might think. Ask yourself: What are the boss’s strengths that I could learn from? Am I allowing my own style or preferences to cloud my opinion and damage our relationship? For example, is he or she cold and analytical while I am more emotional and focused on people – or vice versa? (Typically the people we have the most problems with are those at the opposite end of our own behavioral style.)

Ask yourself, too, whether there are ways you can play to your boss’s strengths and preferences. Are there other people reporting to your boss who have a good relationship with him or her? If so, and assuming that these people aren’t simply sucking up to the boss, can I emulate some of what they are doing to build a better relationship with the boss? Do I know what work issues are keeping my boss awake at night? Can I link the changes I am trying to lead to those “hot button” issues? Could I more effectively partner with my boss to use his or her higher organizational position to leverage the larger change or leadership agenda I am trying to drive forward? Do I understand the bigger political picture of which my boss is a part? Am I “stage managing” my boss to help him or her look good and bring the additional weight of his or her office to our situations?

Many bad bosses do a poor job of planning, setting priorities, and following through. Sometimes that’s because he or she is being pulled in many directions by forces beyond his or her control. Do I know what those are? Other times bosses are just disorganized and undisciplined. But before I throw a Pity Party and complain about that, I need to take a look in the mirror. How’s my leadership example? Strong leaders take the initiative to regularly plan, set priorities, and follow through with his or her boss. Does my boss share the same sense of urgency I have about the changes that need to be made in our organization? Have I done enough to increase his or her understanding of the need for change?

Research indicates that effective middle leaders make valuable contributions to change in successful organizations. INSEAD professor Quy Nguyen Huy found that strong middle leaders have good entrepreneurial ideas. They are often better than executives at leveraging informal networks. The best ones stayed attuned to and meet the emotional needs of people throughout the organization during major change. Effective middle leaders also manage the ongoing tension between continuity and change.

There is a difference between middle managers and middle leaders. Both are needed. However, most organizations need stronger leadership to counter-balance years of focus on management systems, processes, and technology. The best middle leaders provide strong leadership up, down, and across the organization. They use influence, persuasion, “tempered radicalism” (change-leaders use their anger or energy to alternatively heat and cool their approaches as they become tougher and stronger), networking, and other skills to lead at the speed of change.

Reprinted with the permission of Jim Clemmer. For over three decades Jim Clemmer’s keynote presentations, workshops, and management team retreats, and seven best-selling books translated into many languages, articles, blog, and newsletters have helped hundreds of thousands of people worldwide. The CLEMMER Group is Zenger Folkman’s Canadian Strategic Partner, an award-winning firm best known for its unique evidence-driven, strengths-based system for developing extraordinary leaders and demonstrating the performance impact they have on organizations. http://www.clemmergroup.com

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Did Prequalification Include Subcontractors? – You be the Judge NECI

In February 2010, the Regional Municipality of Niagara created a shortlist of general contractors through a formal Request for Prequalification (RFQ) process, in accordance with its Purchasing Policies and Procedures Bylaw. The shortlisting process was for work related to two renovation projects at the Niagara District Airport: the “Groundside” project and the “Airside” project. 

Weinmann Electric Ltd. acted as the electrical subcontractor for Dufferin Construction Company, the successful bidder on the Groundside project, which commenced in June 2010.         

By way of letter dated April 21, 2010, the Region informed each of the five prequalified general contractors, including Dufferin, that they were eligible to submit written tender bids for the Airside project. On the advice of its consultant, the Region decided to specify minimum qualifications for the electrical subcontractors on the Airside project, due to the nature and complexity of the airfield lighting requirements.             

In the April 21, 2010 letter, the Region advised the general contractors bidding on the Airside project that “… electrical subcontractors must have successfully completed at least two airfield lighting projects in Canada with a value of at least $750,000 each.” In the same letter, the Region set out the names of the four electrical contractors that its consultant had said would meet the minimum qualifications, with a stipulation that other subcontractors would be considered, provided they met the minimum qualifications. The requirement for minimum qualifications was subsequently incorporated into the tender document for the Airside project by addendum, without mention of the four named companies.             

Although Weinmann was clearly a well-established electrical contractor, it was not one of the named companies, and did not meet the minimum qualification requirements, as its experience with airfield lighting work was limited. Weinmann contacted representatives of the Region and, through discussions, it became clear that Weinmann might have been able to meet the minimum requirements by partnering with another electrical contractor with suitable experience. On August 3, 2010, before such partnering arrangements could be formalized, and shortly before tender bids for the Airside project were due, the Region informed the bidders that they “may carry Weinmann as the airfield lighting/electric subcontractor for [their tender bids] pending receipt of the requested backup information.”      

Dufferin’s bid for the Airside project named Weinmann as the electrical subcontractor, incorporating Weinmann’s pricing for that aspect of the work. By letter dated August 11, 2010, the Region requested, among other things, the documentation with respect to Weinmann’s qualification as the proposed subcontractor. Although Weinmann did provide the backup documentation to Dufferin on August 13, Dufferin by that point had decided to use another electrical subcontractor on the project, in part due to its concerns about whether Weinmann could meet the requirements, and in part due to concerns about the possibility that Weinmann would be overextended by taking on the Airside project. 

Weinmann initiated litigation and sought damages from the Region, alleging that it lost the Airside electrical subcontracting job because of the unlawful actions of the Region. The Region’s bylaws prescribe the procedure for conducting prequalification processes, including prequalification of any subcontractors. Weinmann alleged that the Region had failed to follow the bylaw by not preparing and advertising a prequalification process for the electrical subcontractors on the Airside project – despite naming four “prequalified” companies in the letter of April 21. The Region denied that any prequalification was done for the electrical subcontractors, so there could have been no breach of the bylaw in question.             

The matter was complicated by the fact that an email from the Region’s consultant referred to the “prequalified list of electrical subcontractors,” although the issue was clarified by a subsequent letter confirming that other subcontractors could qualify by meeting the stipulated minimum requirements.             

What would you decide in this case?

Answer 

In Weinmann Electric Ltd. v. The Regional Municipality of Niagara, 2016 ONSC 13, the Ontario Supreme Court of Justice concluded that the conduct of the Region was not intended to produce, and did not produce, an exclusive shortlist of electrical subcontractors. The April 21 letter was clear that other subcontractors would be considered if they could meet the requirements. The letter simply included a non-exclusive list of suggested electrical subcontractors, which the Court found to be entirely reasonable, given the non-routine nature of the project. This conclusion was supported by the fact that the tender document for the Airside project did not list these suggested subcontractors; rather, it specified the minimum requirements that had to be met by any electrical subcontractor to be used.             

In concluding that the Region did not conduct a prequalification process for electrical subcontractors, the Court found that there could have been no breach of the cited bylaw. The Court also dismissed general allegations of breach of the duty of fairness. In the words of the Court, “If there has been no breach of the By-Law, and no other unlawful act, there can be no breach of a duty of fairness.”             

In the alternative, the Court found that, even if the Region had conducted a prequalification process and had breached the bylaw in doing so, Weinmann failed to prove that it had suffered any damages as a result. A plaintiff must prove more than an unlawful act in order to recover damages: it must also prove, on the balance of probabilities, that it has suffered a loss as a consequence of the unlawful act. In this case, if the Region had conducted a prequalification process, Weinmann would not have met the requirements, and therefore would not have made the shortlist, rendering it ineligible for the subcontract work in any event.       

Coupled with the vague calculation of the damages alleged by Weinmann – including the fact that the impact on profit margins of having to partner with another company for the electrical work was not reflected – the Court had no hesitation in dismissing Weinmann’s claim, leaving the parties to agree on the amount of costs payable by Weinmann.

Issue 113 | JAN – MAR 2016

Readers are cautioned not to rely upon this article as legal advice nor as an exhaustive discussion of the topic or case. For any particular legal problem, seek advice directly from your lawyer or in-house counsel. All dates, contact information and website addresses were current at the time of original publication.

 

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Scope Changes in Tendering – NECI

How much freedom does a company or a municipality have to change the scope of a tender? What if you suddenly realize that there is a cheaper or quicker way to do the work? What are the perils of major scope changes – especially after tender closing? A recent case from Alberta – Thompson Bros. (Construction) Ltd. v. Wetaskiwin, [1997] A.J. No. 822 – provides the answers.      

The City of Wetaskiwin was developing a park project with a lake. On October 1, 1996, the City called for tenders for the Urban Park lake excavation project. Tender bids were opened in public. The three lowest were Thompson Brothers ($481,913.23), Central Oilfield Services ($512,970.71), and El San Industries ($525,616.00).

On October 16, the Urban Park committee met and passed an internal motion that City Council approve the tender submitted by Thompson Brothers. The next City Council meeting was scheduled for October 26.

Prior to the October 26 meeting of City Council, City staff had a major brainwave. The staff reviewed internal reports that dealt with City requirements for approximately 40,000 cubic metres of clay at another project (the landfill site). The reports recommended that the clay excavated from the Urban Park lake project be used for the landfill site project.

As a result, two events took place at the City Council meeting on October 26. First, the motion to award the Urban Park lake contract to Thompson Brothers was deferred for two weeks. Then, senior staff recommended that the City seek separate tender bids for the excavation of the landfill site materials, and that the two contracts (lake excavation and landfill site) be awarded to the lowest cumulative bidder.

On October 30, City staff contacted the plaintiff (Thompson Brothers), and told them about the potential work hauling clay from the Urban Park lake project to the landfill site project. On November 2, the plaintiff was asked to provide a unit price per metre to excavate, haul, load and stockpile the clay at the landfill site. The plaintiff was not told that the City had decided to award the two contracts to the lowest cumulative bidder.

On November 4, prices for the landfill site work were received. Thompson Brothers quoted a price of $98,400.00 (unit price of $2.46 per metre), and Central gave a price of $64,800 (unit price of $1.62 per metre). As a result, Central was the lowest cumulative bidder on both tenders, by $2,542.50. On November 24, City Council approved the awarding of both contracts to Central. Thompson Brothers sued the City. The company argued that the City’s actions were unfair and compromised the integrity of the tendering process to such an extent as to breach Contract A. In its August 1997 judgment, the Alberta Court of Queen’s Bench agreed with the plaintiff and awarded damages in Thompson Bros. (Construction) Ltd. v.

Wetaskiwin, [1997] A.J. No. 822. First, Mr. Justice Murray commented that this “ … is another in the long line of cases involving an owner putting a construction job out to tender, tenders being submitted, and at the end of the day the low tender not being accepted.”

More importantly, the Court criticized the changes made by the City. Murray, J. said that “The contract awarded was not responsive to the tender process. Rather, it was for work of a different scope than that contemplated by the tender documentation. What the City did also amounted to a change or modification of the scope of the work after the close of tenders … By using the Plaintiff’s tender in this manner, the City gave Central a second chance to bid on the Lake project which was akin to a form of bid shopping and was unfair to the Plaintiff.”

The plaintiff received damages of $88,323.90 plus court costs. The damage award was based on the profits that the plaintiff lost by not being awarded the contract for the Urban Park lake project.

Reprinted from The Legal Edge Issue 19, May – June 1998

www.neci-legaledge.com

 

 

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How Precise Does Language Need to be in Software Licences? – You be the Judge NECI

Does your organization hold software licences? This recent case from Quebec is a cautionary tale about ensuring that you include accurate wording about the scope of any licence, and consider and address the issue of revocability. Can the licence be revoked? If so, under what circumstances?     

In 1984, then-student Elizabeth Posada developed a DOS computer program called Ceres to allow users, such as university students or business executives, to vary certain inputs to produce reports and learn business concepts. In December 1984, Posada incorporated a company called Planification-organisation-publications Systèmes (POPS) Ltée, of which she is the sole officer and shareholder.           

In 2007, Posada joined long-standing friends Philippe Chapuis and Benoît Bazoge as a shareholder and employee of their company, 9054-8181 Québec Inc. (IDP). The three had been doctoral students together and all had used Ceres while they were professors or lecturers at the Université du Québec à Montréal (UQAM). (In 1989, for $2,000, Benoît Bazoge had purchased a user’s licence for Ceres on behalf of UQAM. Philippe Chapuis had done the same on behalf of the École Supérieure de Commerce in Tours in 1990.)           

When Posada joined IDP in 2007, she effectively ceased POPS’ commercial operations, and even gave IDP the right to use the POPS trade name. Posada was hired to develop the adaptations of and enhancements to Ceres that IDP wanted. She was responsible for completing work on the software called Omega – the Windows version of Ceres – on which she, Chapuis and Bazoge had collaborated since 1998, and for developing the software that would become known as Epsilon and Comex. These two were scaled-down versions of Omega.           

In October 2008, Posada resigned as a shareholder of IDP because of a dispute over compensation, and left the company. She demanded that IDP stop using Ceres, Epsilon and Comex. IDP refused, and POPS sued IDP. The case went to the Federal Court in April 2009.           

In its April 2013 judgment, the Federal Court found that copyright subsisted in the Ceres software products and subsequent versions, POPS was at least one of the rightful owners of that copyright, IDP had at least an implied licence to use the products (including access to the source code and future adaptations that IDP might develop), POPS was not entitled to revoke that licence, and IDP had not infringed POPS’ copyright, so was not liable for any damages.           

POPS appealed the judgment, arguing, among other things, that Chief Justice Crampton had erred in his decision about the revocability of IDP’s licence, as well as about the scope of it, claiming that, following Posada’s departure, IDP did not have rights to the software, all future adaptations, and the source code – including the right to modify the code.           

See below to discover how the Federal Court of Appeal untangled this case.

Answer

The Federal Court of Appeal decision in Planification-organisation-publications Systèmes (POPS) Ltée v. 9054-8181 Québec Inc., 2014 FCA 185, which ultimately found for IDP, reminds us again that litigation is a poor substitute for clear and unequivocal language in contracts and agreements. Perhaps a more subtle lesson is to maintain a firm focus on legal rights and responsibilities, even – and some would argue, especially – when entering into business arrangements with ‘friends’. Expect the unexpected and plan for the end of the relationship, as you would for any contract.           

Posada made several claims. Among them, she claimed that the trial Court had failed to apply the correct principles of law in determining the scope of the software licence, and that, with respect to IDP’s access to the source code, the trial Court had acted ultra petita, meaning that the Court granted more than IDP had asked for (it had not in fact asked for access to the source code, or the right to modify it). With respect to the revocability of the licence, Posada argued that the trial Court had made several errors in law – including not taking a systematic approach from English case law – and that it was not reasonable or fair for IDP to hold a non-revocable licence after Posada and IDP went their separate ways, since (Posada claimed) the licence had been conditional on IDP and Posada working together.           

The Court found that IDP had indeed never asked for access to the source code or for the right to modify it in the future, so it limited IDP’s software licence to all versions of Ceres, Omega, Epsilon and Comex that existed at the end of the IDP/Posada collaboration, without IDP access to the source code.           

With respect to the revocability of the licence, the Court rejected Posada’s argument that the trial Court should have followed English case law. The appeal Court instead used the ‘intention of the parties’ test that is the standard of review under Canadian law. The appeal Court found that the trial Judge had not erred in this, so reaffirmed the trial decision that the licence was non-revocable. Further, the Court found that a non-revocable licence was reasonable and fair, given Bazoge’s and Chapuis’ early purchase of licences to use Ceres, and their later investments of money and staff resources to develop the software. In the Court’s opinion, and in the absence of explicit language to the contrary in the agreement, the licence was not therefore conditional on IDP and Posada working together.           

Although the Court held that IDP was the primarily successful party, each party was responsible for its own costs. The appeal was dismissed, except for a revision to the wording of the trial Court’s decision with respect to the scope of the licence, and specifically to the source code. 

Reprinted from The Legal Edge Issue 109, January – March 2015

 

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