How a new directive makes it easier to procure software in the GC

TL;DR (too long; didn’t read)

The Treasury Board of Canada Secretariat’s (TBS) new Directive on the Management of Procurement, Appendix B, §B.1.1.4 states that for low-risk and low-dollar-value goods and services contracts, Public Services and Procurement Canada (PSPC), Shared Services Canada (SSC), and departmental procurement teams may now accept standard commercial terms and conditions (Ts & Cs). These include subscriptions, software, mobile applications, cloud services, and open-source software. This new directive that took effect in May 2021 applies to all sorts of goodies you and your team may wish to procure.

Why is this good news?

The need for better tech tools

In the not-so-distant past it was difficult for public servants to use “Software as a Service” (SaaS) tools. Many were blocked by departmental firewalls as a security precaution. However, in a more virtual world where people are collaborating less in person, these tools increased productivity. So, having access to them became more important. In June 2018, the Chief Information Officer of Canada released new Direction on Enabling Access to Web Services. It recognized the need for public servants to have open access to modern tools. After the release of this directive, many SaaS-type tools were unblocked on Government of Canada (GC) networks.

“The GC recognizes that open access to modern tools is essential to transforming how public servants work and serve Canadians.”
-Direction on Enabling Access to Web Services §5.1

Green light to use. Red light to procure.

Despite these changes in IT policy, financial and procurement procedures hadn’t been updated to allow for procurement and payment of these tools. Sure, the websites may have been unblocked, but contracting authorities could not accept the standard terms and conditions for many of these tools.

Why? Limitation of liability and indemnification. What does that mean? Well, companies want to protect themselves, understandably, from legal risk. These terms and conditions help them limit and share that risk. But the government also wants to limit its risks. As we’re procuring tools with taxpayer dollars, we want to ensure that there is recourse should a vendor not fulfill their obligations. Disagreements over these terms and conditions caused stalemates in the contracting process, even for low-dollar, low-risk procurements. And so, though some advancements have occurred, procurement and use of these tools has continued to remain elusive… until now.

Procurement green light

In May 2021, a new procurement directive came into effect, complementing the original directive that let us use modern tools. It gave procurement and contracting officers permission to accept standard commercial terms and conditions for low-risk and low-dollar-value contracts. We are now able to use and procure the tools.

Love your procurement teams 💖💖💖

Even though the new directive took effect in May 2021, it gives departments 12 months to fully transition. That means we can’t just snap our fingers and have everything changed. Procurement officers work in a tough environment. Their work is governed by a multitude of international trade agreements, federal laws, policies, and directives, as well as decisions by the Canadian International Trade Tribunal. With heavy workloads, it can be hard for them to keep up with all the changes in the rules that govern their work. We couldn’t have run our first SaaS procurement for Figma, a web-based graphics editor and prototyping tool, under the new directive without our procurement colleagues at TBS and SSC.

Procuring Figma

We wanted to procure Figma, a SaaS tool to help our designers, developers, and researchers collaborate.

We submitted our contract request in June 2021. For nearly 6 months, we worked with our procurement colleagues to try and get Figma. There were a lot of steps, a lot of back and forth, and a lot of seemingly insurmountable obstacles – terms and conditions being the biggest among them. “No” or “not yet” were common themes throughout.

Since the procurement directive was still relatively new, our teams were still working with previous limitations.

🎵 Here comes the sun!

I am a firm believer in persistently asking “why” behind decisions that are made and answers that I am given.

It was while working with a procurement officer to find the exact policy that explains why the Government of Canada can’t sign the terms and conditions, that we discovered the new directive that says we can sign them. This contract was indeed eligible to be accepted and signed. Amazed, we consulted SSC just to be sure. Once confirmed, and after pinching myself to ensure I wasn’t dreaming, it was full speed ahead!

Are you up to date on changes to the policies and directives that govern your work? Your productivity and efficiency may thank you for it!

Disclaimer on contracting

Now may be a good time to remind readers that just because you can enter into a sole source contract, it doesn’t mean that you automatically should. In government contracting, competition is still the norm. Remember your public service value of Stewardship and work with your procurement teams to see what’s out there. You may be pleasantly surprised at your options."

A little help from our friends

We’re grateful for the support from the procurement officers at TBS and SSC that helped with the Figma procurement process. A special thanks to Lars Norgaard at TBS. He and I met regularly to go through each of our procurement files. These meetings were very helpful. I recommend readers do the same with their procurement teams, if they can.

What this means for GC procurement

What is especially important about this procurement process, is that it confirmed the new directive for us and set a precedent for future similar procurement processes. Now that we know the new directive exists and the possibilities it opens up, the procurement process should be much quicker and smoother. This will allow us to deliver on our mandate and help government serve people better. Wish us luck!

May all your procurements be straightforward, quick, and bureaucracy free! I wish you all great success and much rejoicing!