Contracting with Governments (updated)
Government, whether municipal or provincial, charge taxes and spend those taxes on services we need. By government I mean at all levels and includes school boards, universities, colleges and health regions. All of them enter into contracts with service providers. I generally believe that if you contract with an entity which uses tax dollars, your contract and dealings with the entity should be public. I am surprised when I find a public body (at any level) not willing to share a contract or a service provider not wanting their contract with a government entity to not have it disclosed.
In many instances, third parties did not want details of their contract (hourly rates or prices) to be disclosed. See Review Reports 195-2015, 196-2015 and 229-2015. In another report a city did not want a contract released. See Review Report 084-2015. A Ministry severed two winning bid figures although they were publicly available. See Review Report 125-2014. In another case, even after holding a public meeting where an agreement, a contract, with a third party was discussed, the Village withheld them from release. See Review Report 122-2014.
This issue has been litigated in the Court of King’s Bench. In the case Canadian Bank Note Limited v. SGI, the judge held that the head properly withheld unit prices pursuant to subsections 19(1)(b) and (c)(i) and (ii) of FOIP. As a result of this case, the IPC has concluded that the contract should be released but not necessarily the unit pricing. See Review Reports 323-2021, Review Report 123-2020 and Review Report 078-2020. For an example where the public body did not show any prejudice, and it was recommended that unit prices be released see Review Report 048-2024. One can also refer to the Guide to FOIP, Ch. 4, p. 206.
In conclusion, third parties should expect that their contracts with governments will be released but if they can show that they can comply with section 19 of FOIP (section 18 of LA FOIP) they may be successful in not releasing the unit price.
I thought I would do this blog to clarify the situation. When a government entity requests tenders or proposals, the submissions by third parties will generally be kept confidential. Once the successful bidder gets the contract, the contract with all attached schedules, will generally be accessible (viewable) by the public. This is consistent with the provisions of The Cities Act (s. 91) and The Municipalities Act (s. 117). The Freedom of Information and Protection of Privacy Act (FOIP) requires Government Institutions (Ministries, Crown Corporations, Boards and Agencies) to release contracts. FOIP does have a number of exceptions to the general rule such as those found in sections 19 and 29(1).
The Local Authority Freedom of Information and Protection of Privacy Act imposes a similar requirement to provide documents (contracts) unless a specific exemption can be claimed and supported. If a contract does not fit into one of those exceptions, then the contract and its attachments are to be released to anyone who asks. It can be a resident, the media or a competitor. The contract gets released.
I often hear the argument that releasing the contract will affect the competitive situation. Just the opposite is true, if all parties know what the successful contractor proposed, next time other parties are free to propose a cost lower than the previous contract. This is good for competition and for taxpayers.
Also I have heard the argument that the contract contains trade secrets. Contractors should try to avoid putting trade secrets in the contracts because the public are entitled to see the contracts showing the work to be done, the obligations of the contractors, the cost and the responsibilities of the public body.
I have some suggestions for public bodies. One is in the tender or RFP documents, put in a clause saying the final contract and schedules are public documents and in the contract itself, put in a clause that says these contracts and all schedules may be released if requested to the public at any time.
These steps may go part of the way to making it clear to all that contracts with public bodies may be released to the public.