Is it a good idea to add a “this RFx is non-binding” clause in our RFx template?

August 8, 2017

Is it a good idea to add a “this RFx is non-binding” clause in our RFx template?

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

Owners seeking shelter from the legal risks associated with Contract A are increasingly including a clause reading: “this RFx is non-binding and therefore does not create Contract A” into documents that otherwise have the elements of a binding RFx.

Is this a good idea? It certainly seems to be. At common law, no freestanding duty of fairness is owed to bidders in a non-binding RFx process. Seems like a no brainer – if you want to avoid Contract A, just make the RFx non-binding!

How to design a non-binding RFx

Although this strategy makes sense in many cases, keep in mind that whether an RFx is binding or non-binding is matter of substance and not form. Courts will look at a variety of factors to determine whether the parties intended to enter into a binding contract – Contract A – by the submission of a proposal. A statement that “no Contract A is created,” while important, is just one of the many factors courts examine.

The most comprehensive summary of factors courts consider when determining whether the parties intended the process to be binding is from the trial level decision Tercon Contractors v. BC 2006 BCSC 499, and presented as the following list in Topsail Shipping Company Limited v. Marine Atlantic 2013 NLTD 163 (upheld on appeal):

The irrevocability of bids or proposals submitted;
The formality of the process;
Whether bids or proposals are solicited from selected parties;
Whether the identity of bidders or proponents is confidential;
Whether there is a deadline for the submission of bids or proposals;
Whether a security deposit is required;
Whether bid or proposal selection or evaluation criteria are specified;
Whether there is a right to reject proposals;
Whether there was a statement that this was not a tender call;
Whether the work or service for which proposals are submitted will definitely proceed;
Whether compliance with specifications was a condition of bids or proposals;
Whether there is a duty to award contract ‘B’;
Whether contract ‘B’ had specific conditions not open to negotiation.

Generally, the more formality there is in the process, the more it points to an intention to conduct a binding RFx. As we saw in the case of Topsail, even if many of the above criteria point to a non-binding process, courts will often strain to conclude a process was legally binding in order to hold an owner accountable for unfair conduct. Therefore, to successfully avoid Contract A, owners are advised to design a process that is clearly non-binding having regard to all of the above factors.

Can a “this RFx is Non-Binding” statement, on its own, effectively negate Contract A?

When determining whether an RFx is binding, courts will strive to respect the parties’ intention and will look at the express and implied terms of the RFx in the context of the above list of factors. The insertion of a “this is a non-binding RFx and no Contract A is created” clause, as highlighted above, will help support an argument that the RFx was intended to be non-binding, but is not in itself determinative. As we have seen with privilege and disclaimer clauses, even in the face of clear RFx provisions protecting the owner, courts may refuse to enforce the clauses when to do so would compromise the integrity of the tendering process. Since a non-binding RFx provision is really just another type of disclaimer clause, judges will likely subject them to the same judicial scrutiny and uncertainty, particularly if it’s the only factor pointing to a non-binding process.

Owners seeking to protect themselves by using a ‘non-binding RFx’ clause in an otherwise binding RFx should therefore not derive too much comfort from the protection it can offer as courts may, under certain circumstances, refuse to enforce it.

A good idea but not a perfect solution

Given the above, is it a good idea to include a “this RFx is non-binding” in your standard RFx document to avoid Contract A duties? In our view, yes. Like liability disclaimers and privilege clauses, these provisions could provide strategic leverage in negotiations with disgruntled bidders and may be legally enforceable under certain circumstances. In deciding to use these clauses, however, owners should be aware that, while they may be a good idea, if put to the test in court they may not act as a perfect solution to the Contract A problem.

Rather than simply inserting a ‘non-binding’ clause in your standard RFx template, a more effective approach is to work with your legal and other advisors to create a template that is specifically and thoroughly designed to be non-binding with regard to all of the above factors. You can then decide when and how that instrument is to be used, keeping in mind that in some cases Contract A might be the most efficient way to proceed.

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].

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.

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Canada Free Trade Agreement Implications

August 3, 2017

FREQUENTLY ASKED QUESTIONS

CFTA Implications

by Lise Patry, B.A.Sc., LLB, ICD.D

Will the Canadian Free Trade Agreement that came into effect July 1 impact my ability to engage with GPOs?

Thanks for this interesting question. It will come as good news to many that in fact the CFTA provisions clarify rules around the use of buying groups

Under the AIT, we only see a reference to buying groups in the Annexes applicable to Crown corporations and MASH sector entities. Covered entities wishing to purchase through buying groups must ensure the activities of the buying groups are carried out in a “manner consistent with this Annex”.

In the CFTA, the buying group provisions apply to all covered entities and additional rules have been added. Covered entities purchasing through buying groups:

no longer have to ensure the procurement is consistent with the CFTA if they have little or no control over the procurement process; and
must publish a notice of participation with the buying group at least annually on their tendering website. The notice must direct potential suppliers to the buying group tender notices website if it is different than the tendering website used by the covered entity.

National Education Consulting Inc.

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

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BC AGLG Flags Management of Vendor Performance

July 27, 2017

The Auditor General for Local Government in BC has published a series of booklets designed to help improve government performance and complement its performance audit reports. Although specifically targeted to local government in BC, these booklets provide a wealth of information, templates and suggestions that can help guide any Canadian public sector organization.

In a January 2016 publication the AGLG highlights vendor performance management as one of three topics to improve achieving value for money in operational procurement. It discusses key elements of a vendor performance management framework, best practices in managing vendor performance and includes a number of templates that can be adapted for use by any organization. The full document can be accessed at https://www.aglg.ca/app/uploads/sites/26/2017/04/Perspectives-T1-T1-PDF.pdf.

This important report complements PSPP 203 – Managing and Evaluating Contract Performance – and augments many of the examples and templates we cover in that course. As an organization that works with public sector right across the country, we see repeated examples of major procurement and contract mishaps related to incomplete or inadequate vendor performance evaluation. Users and business clients become frustrated when the procurement department ‘continues to engage the poor performers’. Yet the procurement department is not provided with enough (or any) information about performance issues to solve this problem. Outstanding vendors see the less than stellar performers continue to be awarded contracts, so they are de-motivated to keep up their own performance standards. All contract performance then slips to the lowest common denominator, further frustrating the users and eroding value for money from government spending. And as we know, terminating a contractor without adequate performance documentation can lead to expensive and protracted lawsuits, unwanted publicity and consumption of valuable resources that could best be directed elsewhere.

If any of this is starting to sound familiar, you or your staff may want to join us online, starting June 26, for a cross-country cohort in <PSPP 203>. (link to 203 reg for june 26 session) Spanning four weeks, this course takes approximately 3 hours of time per week, and delves into many detailed examples, illustrations and best practices related to this important aspect of the procurement and contract management cycle. The analogy that we often use is that if the RFX process is the ‘wedding’, then the contract management process is the ‘marriage’ – that’s where the hard work really takes place! Determining how performance will be measured and managed must be thought about in the planning stage, carefully described in the RFX and resulting contract, and then implemented as contract performance unfolds.

Managing Gossip in Your Workplace

July 19, 2017

By: Monika B. Jensen

Gossip is widespread in the workplace. At times, it appears as if employees have nothing better to do than gossip about each other. They chat about their organization, their coworkers, and their bosses. They often take a half truth and flip it into an entire hypothetical reality. Speculating on the team’s future, who will let go, who is seeing who and what employees are doing in their personal lives.
Employees are capable about gossiping about everything, and they do in a workplace that fails to bring about a stop to the chatting employees.

A certain amount of gossip is likely to occur in any place of work; employees are curious to know what is going on and like to chat about work matters. The essential point is to determine when the gossip is inappropriate. In which case, if it is not addressed, it may lead to low employee morale or a toxic work environment.

As a manager, the need to stop the gossiping occurs when it becomes disrupting to the workplace and the business of work, it is hurting employees’ feelings, it is damaging interpersonal relationships, or injuring employee motivation and morale.
Since research shows that gossip is disruptive in the workplace, what can we do to address it? Let us look at a few different approaches as a team and as an individual to addressing gossiping in the workplace.

When you deal with gossip as a team considers putting a ban on gossiping. Some workplaces have adopted an official ban on workplace gossip by having employees sign a pledge. Although extreme it may be effective. To discourage gossiping encourage employees to speak to each other about issues that are causing them problems before they bring it to their supervisors or other parties’ attention.

In the age of social media, it becomes easier to spread rumours and gossip about others. This can cause tremendous harm to the culture of the workplace. Organizations, today need to deal with social media and keep an eye on emails, personal blogs and Facebook discussions among employees. Finally confront rumours promptly. Providing factual information about layoffs, problematic situations or surplus of employees serve them better than to leave them speculating on their own. It is important to discuss the impact that gossip may have in the workplace. Talking openly the differences between active communication and gossip. In today’s workplace, verbal harassment has legal ramifications. Employers have a duty to take action against verbal harassment when they become aware of it.

So in dealing with gossip as an individual, always share information.

Be generous with the non-confidential material. This has proven to put a check on the gossip mill. Interestingly closed doors can set off alarms even if the intent is innocent.

Let people know that you may be interrupted at any time unless in a private meeting. Be sensitive about appearances.

Often rumours and gossip form around cliques in the workplace. Try to avoid forming groups and reach out to new people to keep the loop open. If all else fails, walk away. Gossip loses its momentum when there is no audience.

Find a way to tactfully suggest a more efficient channel for complaining or remove yourself from the discussion. If you start to focus on the positive qualities of your colleagues, you will automatically have nice things to say about each other.

Workplaces that have the highest levels of gossip seem to be the ones where employees are not engaging in work duties. Stay busy. If your day is full of tasks which you find thought-provoking and rewarding you will be less likely to get distracted by trivial activities.

We spend long hours at our job, make a point of cultivating relationships and activities outside your workplace. Having strong relationships outside the office provides sources of emotional support and objective advice often.

Unfortunately lurking at the extreme end of the gossip spectrum is workplace bullying. What may seem harmless rumors to some, may amount to intimidation and harassment for the targeted employees. Complications of physical and meth health issues arise and need to be addressed in the proper forum.

Finally become a role model. Do not indulge in any gossip yourself. Become a leader in this area. Do not feel the need to chat to feel connected, liked or to be informed about your team. Taking a stand to prevent random gossiping creates a better workplace for everyone.

Monika B. Jensen

Principal, Aviary Group

905-683-9953

[email protected]

Pump Procurement Prompts Protest – You Be the Judge

July 18, 2017

On March 15, 2015, PWGS issued a solicitation for multiple frigate pumps on behalf of the Department of National Defence, with a closing date of May 15, 2015. Springcrest Inc. submitted its bid by the deadline and was informed in August that the bid was responsive, but that PWGS had decided to cancel the solicitation and re-issue it with modifications.

On May 17, 2016, PWGS again issued a solicitation on behalf of the DND for the pumps, and included a modification requiring that the pumps be shock tested prior to bid submissions. The original deadline was set for June 27, but was eventually amended to September 30, 2016. On May 26, Springcrest submitted an objection to PWGS asking that the modified requirement be removed, since it was impossible for any manufacturer to meet that requirement. Upon the next extension of the deadline, that requirement was not removed.

In July, Springcrest then asked PWGS if the original equipment manufacturer (“OEM”) was also required to provide certification of shock testing on its pumps. Four days later, the PWGS issued an amendment to the solicitation stating that if the OEM offered a motor different from the original pump, then the OEM must provide shock testing certification; if the motor was the same, the OEM did not have to meet this requirement.

On that same day, Springcrest made a formal complaint to the CITT on two issues: (1) the terms of the RFP were biased in favour of the original equipment manufacturer; and (2) the timing of events in the solicitation process made it impossible for suppliers of equivalent products to meet the process’ requirements. Specifically, there was insufficient time given to bidders to obtain a shock testing certification, meaning that only OEM suppliers with prior certification could apply. Springcrest further submitted that standard industry practice is to perform a shock test on the first pump a manufacturer produces, meaning that it would take a manufacturer approximately a year to be in a position to provide this certificate. When Springcrest filed its complaint, there were only 62 days between bid issuance and the deadline.

Springcrest further argued that if OEM suppliers were not required to provide shock testing certification, the terms of the solicitation were discriminatory as they precluded, in effect, non-OEM suppliers from bidding. The requirement, according to Springcrest, was also contrary to industry standard and previous DND practice: generally, shock testing is done after contracts are awarded rather than before a bid deadline date. Springcrest also submitted that no pumps were currently available that could meet the specification, as the manufacturer of the motors used in the original pump assemblies was no longer in business, and that no company currently owns the rights to make them.

PWGS submitted that requiring shock testing certification at bid closing was not discriminatory because it was part of the government’s legitimate operation. Further, the pumps were urgently needed by the DND in order to service the Halifax class frigates of the Royal Canadian Navy, which does not currently have sufficient working spare pumps in order to fill their demand. Thus the certification was required in order to procure pumps without further delay, as allowing bidders to get the certification after would delay the Navy getting the pumps by several months. PWGS also submitted that generally governments do require this certification at bid closing, despite what Springcrest had submitted. PWGS did submit evidence agreeing with Springcrest’s assertion that it could take a company a year to get shock testing certification.

This agreement was governed by the Agreement on Internal Trade (AIT) and by the Canadian International Trade Tribunal Procurement Inquiry Regulations (Regulations). The Tribunal also consulted Article 1007 of NAFTA and Article X of the AGP, which provide that technical specifications should not be drafted in certain prescribed ways that favour a particular supplier or suppliers. Do you think Springcrest’s complaints are valid? If yes, what remedy would you grant, with reference to subsection 30.15(3) of the CITT Act?

Answer

In Springcrest Inc v Department of PWGSC PR-2016-021 the CITT ruled the complaint was valid, recommended that the DPWGS cancel the existing solicitation and issue a new one, and awarded Springcrest its costs.

First, the Tribunal considered whether Springcrest’s assertion that the amended solicitation was discriminatory, and accepted that the DND had legitimate operational requirements leading to them seeking the pumps without further delay, such as that caused by shock testing certification. Moreover, Springcrest’s evidence did not indicate that PWGS deliberately sought to be discriminatory in excluding suppliers of equivalent products, or of favouring the OEM supplier. Rather, the evidence suggests this was inadvertent. Thus the CITT ruled that this ground of complaint was invalid.

The Tribunal next considered Springcrest’s second complaint, which was that the timing of the events in the process made it impossible for non–OEM suppliers to meet the amended bid’s requirements. Both parties agreed that it could take up to a year to manufacture pumps and have them be shock tested. Thus the CITT found that the timing did have the effect of discriminating against non–OEM manufacturers and that PWGS should have allowed for more time, in the interests of fair competition. Accordingly, this ground of complaint was found to be valid.

Springcrest requested a remedy either of amending the solicitation to remove the shock testing certification requirement, or of re-issuing the solicitation without that requirement. Since the bid period had closed by the time of the CITT ruling, Springcrest’s first suggestion for a remedy was not feasible. The CITT thus ruled that PWGS must cancel the existing solicitation and issue a new one which either removes the contested requirement or allow suppliers sufficient time to provide shock testing certificates before bid closing. Springcrest was also awarded its costs.

National Education Consulting Inc.

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

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COURSE CALENDAR

Leadership in Supply Chain

July 4, 2017

Leadership in Supply Chain

by Larry Berglund, SCMP, MBA, FSCMA

Presentations Plus Training & Consulting Inc.

Ideas are easy. Implementing them is the challenge.

Leadership in organizational structures is fleeting. Leaders take on the tough tasks and provide a vision and direction for attaining their goals. Managers follow the plan and try to insert efficiencies along the way. In supply chain management we often use the term “leading practices” when in actuality, we are referring to common practices across a sector.

When one organization continues to issue competitive bidding process for services, following the practices of its peers, we consider this to be following a leading practice. When another organization is first in its sector to adopt a vested outsourcing strategy, we are observing leadership in action

Leaders are not satisfied with the status quo. The need to drive innovation is inherent in every leader and thus every industry. Followers value leadership because while they can perceive when something needs to change, they tend not to accept the professional and personal risks associated with driving that change.

Change is perhaps the only true constant – but leaders must articulate a vision before real change can happen. Such a vision does not necessarily come from a brief and illuminating epiphany, but more often from leaders’ abilities to perceive that which is beyond the noise in the market or the confusion in the messages. Leaders instead appreciate nuances during the discovery and presentation of new ideas while accepting a reasonable level of risk. Leaders are also not too humble to draw from successful ideas of others and give credit where due.

What makes a person a leader? First, it is their self-conviction in knowing what needs to be done and their commitment to following that goal. They realize when it is beyond their personal resources to reach their goals without the commitment of others. A leader is less concerned with the how of change, allowing for their followers to utilize their own ideas and energy for carrying out that change. A leader is more focused on the why of change.

Leaders paint the picture of the future and have their audience – their followers – understand how their roles can complement the vision. This aspirational aspect of leadership is concurrent with the inspirational communications within the organization and to its external stakeholders.

Leaders need to create the buy-in. Without followers’ commitment to the vision, success is doubtful or compromised. Buy-in requires credibility, a focus on common interests, shared passions, resilience and an emotional connection created by the leader. People need affirmation that a leader is authentic before they will hear the new message. Leaders anticipate both a certain level of resistance and the occurrence of conflicts. They need to listen to concerns and adequately address them in their action plans. A guiding strategy requires an approach in accord with the organization’s values. Changes in behaviour indicating a stronger alignment with the leader’s vision can provide evidence that the buy-in is taking place.

In supply chains, we see these changes in behaviour when leading practices – such as adopting total cost of ownership – replace pursuing the lowest cost; when public organizations utilize the buying power in procurement to positively affect social and economic development; when targets are set to ensure diversity across supply chains; when we see inclusive opportunities for people who face employment barriers; and when value for money exceeds arbitrary budget limits and considers benefits to the community as a whole. That is leadership. Leadership begins when we start to think outside the books.

Larry has been in the supply chain management field as an author, manager, business trainer, academia, and consultant for many years. Larry has worked in both the private and public sectors. Recently he has been co-facilitating NECI eSeminars, classroom sessions, and online modules. His new book, Good Planets are Hard to Buy is now available on Amazon.com

National Education Consulting Inc.

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

[email protected]

Five Essential Skills That Make You an Inspiring Leader

FREE WEBINAR

Five Essential Skills That Make You an Inspiring Leader

How can leaders most effectively engage and inspire others? What’s the best way to gain true buy-in and investment? This webinar, led by communication expert Kristi Hedges, will push participants to think about their own ability to influence in new and surprising ways.

With an interactive format and rich content underscored with social science research, this webinar offers participants practical tools for enhancing their leadership skills, including:

Communication strategies to enhance your impact
Ways to drive buy-in and adoption of ideas
Helping others to find meaning in their work

TOPIC: Five Essential Skills That Make You an Inspiring Leader
DATE: July 12
TIME: 1 pm EDT
DURATION: 60 minutes
SPEAKER: Kristi Hedges

To Learn More and Register

Dodging Defensible Documents Decried

June 30, 2017

While Canadian procurement is rooted in our unique legal structure, we are among many jurisdictions in the world that ascribe to fair, open and transparent competitive procurement processes. As we know, organizations that follow these guidelines tend to get better value and attract more sophisticated respondents while fully demonstrating the unbiased nature of their contract award decisions. In the public sector this translates into demonstrating effective stewardship of public funds, which in turn bolsters taxpayer confidence.

A recent decision out of the UK highlights the international attention to fairness in procurement. Energysolutions EU Ltd. v Nuclear Decommissioning Authority [2016] EWHC 1988 (TCC) outlines a myriad of fairness complaints lodged by an unsuccessful bidder to a procurement for the decommissioning of 12 different nuclear facilities in the UK. Among other arguments, the claimant Energysolutions (‘ES’) alleged:

Acceptance of a non-compliant bid from Cavendish Fluor Partnership (‘CPF’), the entity who was ultimately awarded the contract;
Manipulation of the evaluation process to ensure CPF success;
Seeking clarification differently with respect to some bidders;
Providing inaccurate or incomplete information to ES during debriefing; and
Deliberately limiting the permanent records of the evaluation process to thwart any potential challengers to the process.

The complaint was not filed within the time limit for suspending the contract award decision, which meant that ES was limited to only a claim for damages. They estimated their losses to be £100 million (roughly CDN$165 million).

As one of the largest contracts ever tendered by the UK government with a procurement process spanning nearly two years, the final decision by the High Court understandably includes a long and complex analysis. For the purposes of this article, we will focus on the final challenge, which related to the government’s insufficient record-keeping.

The evidence presented at the lengthy trial shows that the government was acutely aware that an unsuccessful bidder might initiate a challenge to the contract award decision, and pro-actively and deliberately directed staff to limit or destroy documentation that might be detrimental to its case. This defensive approach included restricting evaluators’ note-taking, possibly destroying contemporaneous notes, and issuing directives to “consider shredding documents” that could damage their position should the matter proceed to litigation.

The credibility of the government became an issue early on in the proceedings, as they failed to produce witnesses to provide evidence on key points, and, in the words of the judge, the witnesses that did appear “suffered from what, on occasion, bordered on an almost obstinate refusal to accept that any mistakes or errors had been made at all.” Pivotal to the Court’s finding of liability against the government was evidence of deliberate attempts to avoid scrutiny by unsuccessful bidders and to subvert the procurement rules that required an open and transparent process.

Damages payable to ES will be assessed in a separate proceeding, but we can assume they will be in the range of several hundreds of millions of dollars – certainly not an effective use of tax dollars.

While this is a particularly egregious example of deliberately sabotaging principles of transparency, it serves as a cautionary tale for all procurement professionals. Had the UK government spent as much time and energy ensuring the process was conducted fairly – rather than redirecting those resources to limiting documentation that could support a potential challenge – the outcome would have likely been entirely different. A well-designed process with skilled and highly trained evaluators, coupled with rigor and discipline throughout the evaluation documentation process, would have provided a complete defence to any potential challenge. Instead, the UK government has taken a huge hit to its credibility, wasted potentially millions of taxpayer dollars and become embroiled in highly contentious and public litigation.

This case serves as a stark reminder of one of the key principles of our Canadian legal system: ‘justice must not only be done, it must be seen to be done.’ As we have seen in other, less egregious cases, it is not enough that the evaluators acted fairly and transparently: the procuring entity must be able to prove such conduct through proper and complete documentation of its process. We often receive questions about how much documentation should be retained through the procurement evaluation process, and our answer is always more rather than less. Retaining the absolute minimum required by legislation and/or policy is not always an effective approach to risk mitigation when it comes to procurement challenges in this litigious era.

National Education Consulting Inc.

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

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Boot Camp: Advanced Financial Leadership

Date and Time – Tuesday, August 15th, 2017 – Friday, August 18th, 2017, 12:00 PM PST

Location

University of Victoria, Student Union Bldg, Victoria, BC V8P 5C2

Description

HOW CAN YOU ADAPT TO THE EVER-CHANGING ROLE OF THE LOCAL GOVERNMENT FINANCE OFFICER, AND BECOME AN EFFECTIVE LEADER IN YOUR ORGANIZATION?

Strengthen your leadership skills in this highly interactive and engaging program designed exclusively for finance professionals in local government. A combination of presentations on best practices and techniques, and individual and small group exercises will exemplify how to master the leadership competencies necessary to address emerging issues facing local government. Gain the insights, knowledge and skills to help you become a more effective and strategic leader.

Be prepared for an intensive, engaging and inspiring program that starts at 4:00 pm on Tuesday, August 15^th and finishes at noon on Friday, 18^th. All sessions will be held at the University of Victoria. Breakfast, Lunch and Dinner will be included Wednesday and Thursday with Breakfast offered Friday morning.

PROGRAM OBJECTIVES:

Advanced Financial Leadership will introduce participants to a set of comprehensive leadership competencies needed to navigate the changing role of local government finance leaders, while addressing the current issues facing local government in BC today. Recognized experts in the field of local government finance, leadership, strategic planning and communications will facilitate group exercises which have been developed to introduce and apply key leadership skill sets and competencies that can be used in your organization.

It is intended to give finance leaders in local government the skills they need to help enhance and transform their organizations to become more strategically focused on long term financial sustainability. Participants will be expected to come prepared to discuss current local government issues and best practices in the areas of:

Long term financial planning and sustainable asset management
Financial reporting and accountability
Award winning financial reporting and presentation skills

WHO SHOULD ATTEND:

Advanced Financial Leadership has been designed for finance leaders in local government who want to take their career to that next level, and help their organization make effective use of current resources through a more strategic and long term focus throughout the organization. While this program has a focus on the long term financial issues facing local government, it will also be relevant for all current and emerging leaders in local government finance.

For more information and to register click here.

Building Trust in the Absence of Integrity

June 20, 2017

Building Trust in the Absence of Integrity

by Gordon White, theconflictjourney.com

I wish to introduce both a general definition of trust I have formulated and the general idea of trusting before looking at some of its variations:

trust (def): a belief in a positive attribute(s) of someone else, and a willingness to rely on that belief although the belief is not fully verifiable

Trust flows out of relationship with others. As we come to know people and have experienced their integrity in various situations, we come to rely on that integrity and therefore trust them. But, what if trust has been lost?

A closer examination of what we rely on may enable us to both better understand trust and begin to rebuild trust when it is lost. We tend to assume that confidence in someone’s integrity is required for trust, but this may not be the case to the degree we assume. It is not only integrity that we may rely on. In any particular situation we might rely as much on one of the following qualities:

competence
consideration
caring
predictability
vulnerability

Below I devote a short paragraph to each of these five qualities, attempting to show that they may allow us to build trust when we are unable to rely fully upon someone else’s integrity.

Trust in a bookkeeper, carpenter, or medical specialist is likely to largely be a reliance on competence and skill more than integrity of personhood. As long as a professional does his or her work for us in a satisfactory manner, we may not be overly concerned about his or her conduct in other areas of life or even how he or she is viewed by peers. In the Speed of Trust, Stephen M. R. Covey highlights the importance of competence as a basis of trust.

Suppose you know that your boss is sometimes dishonest and lacks integrity in other ways. It may be enough for you to know that he or she shows consideration for you and will consult with you over decisions. You can trust that you will be considered even when you don’t think he or she has much overall integrity.

On the other hand, you may have a sibling you find to be inconsiderate (the opposite of the boss). However, at a more fundamental level, you may know through acts of affection that you are loved by this sibling. You know that he or she cares about you and would not intentionally set out to hurt you. You can rely on caring but not on consideration (in the form of forethought or action infused with wisdom).

In Getting Together, Fisher and Brown presented a version of trust that divides trust into predictability and caring. They point out that in the Cold War, the USA and USSR, although not caring about the well-being of the other, had a form of trust based on predictability. As long as each remained predictable to the other, the tension between them remained in balance. Unpredictable behaviour provoked alarm. Legal settlements and less formal agreements often create some predictability over future behaviours. In an antagonistic relationship, if we have assurances about how each of us will predictably behave, we can then set out on a road to building deeper forms of trust.

In the Five Dysfunctions of Team, Patrick Lencioni has promoted vulnerability-based trust as essential on high-performing teams. One key behaviour is the willingness to be open about one’s weaknesses and errors, and to bring them into team conversation so they can be addressed and compensated for. Another needed practice is the willingness to engage in conflict over proposals with the willingness to consider other viewpoints. Being vulnerable with others is an important avenue to building trust.

There are at least three benefits that come from examining what we rely on in a relationship where trust is an important factor:

Firstly, if trust has been broken, we may be able to find one of these five qualities in the other person at a time when we think he or she is lacking in integrity. If we can rely on one of those qualities, we can begin to rebuild trust.

Secondly, if we know what quality we are relying upon, we may be able to find ways of increasing mutual trust, for example, by demonstrating greater predictability or competence to each other.

Thirdly, if we discover that we are relying largely on a quality other than integrity, it indicates that we may not have much evidence of integrity (because we didn’t need to experience integrity in order to trust). In this case we should not be surprised when we encounter lack of integrity. And, in some situations, we should probably be prepared for lack of integrity to show itself.

Gordon White is the principal of Gordon White Consulting in Victoria, B.C. He is a mediator and organizational development consultant who offers team development programs and negotiation training in one- and three-day formats. He also teaches a course in Conflict Analysis and Management at Royal Roads University. Gordon is currently creating an online conflict management course for large organizations. He blogs regularly at theconflictjourney.com. You can follow him on Twitter @valueconflict, and reach him at [email protected] or (250) 389-6231. This post, which originally appeared at The Conflict Journey on March 11, 2016, has been edited for style and is used by permission.

National Education Consulting Inc.

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

[email protected]

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