LEXPERT MAGAZINE
|
JANUARY/FEBRUARY 2017 11
INFRASTRUCTURE IS A PERENNIAL focus
of the Canadian Council for Public-Private
Partnerships' yearly conference, and No-
vember's meeting in Toronto heard from
lawyers on procurement and P3 law, and
from Canada's consul general in Detroit on
joint Canadian-American projects.
Vendor Performance Program
Infrastructure Ontario (IO)
announced
that it will launch a new vendor perfor-
mance program for construction contrac-
tors in 2017. e program will impose a
scorecard on any contractor to the Ontario
government, and infractions would result
in penalties that could affect a vendor's
ability to win future procurements.
During the conference breakout session,
"Let's Get Jurisprudential: Hot Topics in
P3 Law and Procurement," IO's General
Counsel and Corporate Secretary, Marni
Dicker, described the new program.
"We have created this program out of a
real need: to appreciate and understand …
the good performers." e greatest risks to
a project are during a construction phase,
she said, and so the new program applies
only to construction contractors.
e AFP Vendor Performance Program,
as it's called, was expected (at time of writ-
ing) to have launched in January 2017 and
be fully phased in by January 2018. e
approach to vendor performance has been
informed by due diligence within IO and
dialogue with industry members. e pro-
gram will be reviewed no later than fall
2018 in order to assess lessons learned dur-
ing the first 18 months of implementation.
is program will measure vendor per-
formance based on a clearly laid out set of
criteria, and will introduce a scorecard for
construction contractors who participate
in Infrastructure Ontario projects. Con-
struction contractors will be given a per-
formance score, similar to a report card,
whereby the contractor's performance on
alternative financing and procurement
(AFP)
projects over the past 24 months
will be assessed against specific AFP con-
tract requirements. Construction compa-
nies will be informed about their actual
past performance results to help them bet-
ter understand the consequences for future
projects, and will be encouraged to take
a continuous improvement approach to-
wards their performance.
Contractors will accumulate demerit
points for any of 12 infractions, based on
IO criteria and linked to its P3 project
agreements; they may also be given points
for good performance. Four or more in-
fractions in the 24-month period before
Ontario sets standards for contractors
the RFQ submission deadline, though,
"will affect you on a future procurement,"
Dicker said. "If you were delayed, we need
to know that. We need to know your
schedule. If you're late, we need a new work
schedule. Performance criteria isn't yes or
no; it can be disputed, and we will adjust
the scores if we're wrong," Dicker said,
adding that "poor performance can affect
a whole team. We want team members
[including bankers and other partners on
a project] to ask a construction contractor,
'What's your score?'"
Scores will be updated on a monthly ba-
sis, she said, and will remain confidential.
IO is arranging one-on-one meetings with
contractors about scorecards so that they
understand what the program means and
can provide input. "We've met with sev-
eral of the associations that represent their
memberships," which have all been briefed
on the program, Dicker reported.
Dispute Resolution
Tim Murphy, a partner in McMillan LLP
in Toronto, discussed some of the problems
seen in dispute resolution. Exceedingly few
cases that his firm has seen have gone to
arbitration, he said; however, one recurring
problem is that of poor scheduling and fall-
ing behind. e construction contractor is
"being given a bunch of stuff earlier on in
the project. What happens is, they wake up
a few months later, they realize they have
an accumulation of very small things," and
deadlines have been missed.
Another source of friction can be sub-
contractors, and McMillan LLP has been
involved in disputes "where major subs
have been involved," Murphy said. In many
of these cases the cost of resolution can be
high. Subs oen don't have the ability to
carry cash, and "one thing we have seen is
… to get the authority [from Infrastructure
Ontario] to write a cheque … requires some
Infrastructure Ontario chooses annual PPP conference to announce new vendor performance program
BY ELIZABETH RAYMER
INFR ASTRUCTURE SPECIAL
From left: Marni Dicker, Infrastructure Ontario;
Andrée M. Blais, Nossaman LLP; Catherine Doyle,
Blake, Cassels & Graydon LLP; Timothy Murphy, McMillan LLP;
Tara Mackay, Torys LLP
