Integrated Solid Waste Resource Management Process -

Prohibition Against Lobbying

(City Council on April 13, 14 and 15, 1999, deferred consideration of this Clause to the next regular meeting of City Council to be held on May 11, 12 and 13, 1999.)

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(Clause No. 2 of Report No. 5 of The Works and Utilities Committee)

(City Council on April 13, 14 and 15, 1999, deferred consideration of this Clause to the next regular meeting of City Council to be held on May 11, 12 and 13, 1999.)

The Works and Utilities Committee recommends that that part of Section 6.1 of the Request for Expressions of Interest (REOI) in the Integrated Solid Waste Resource Management Process (formerly named the Solid Waste Management Marketplace Engagement Process) pertaining to the "anti-lobbying" clause be deleted from the REOI.

The Works and Utilities Committee reports, for the information of Council, having directed that the City Solicitor and the Chief Administrative Officer, in conjunction with other appropriate staff, be requested to develop a stringent lobbyist registration by-law, and submit a report thereon to the Corporate Services Committee as soon as possible.

The Works and Utilities Committee submits the following report (March15, 1999) from the Commissioner of Works and Emergency Services:

Purpose:

The purpose of this report is to seek direction from Toronto City Council on the inclusion, in the Solid Waste Management Marketplace Engagement Process ("SWM-MEP") two-stage proposal call for solid waste disposal, diversion, and new and emerging technology options, of an "anti-lobbying" requirement. The two-stage proposal call entails a Request for Expressions of Interest (the "REOI") and a Request for Proposals (the "RFP").

Funding Sources, Financial Implications and Impact Statement:

There are no direct financial considerations arising from this report.

Recommendations:

It is recommended that:

(1)the Request for Expressions of Interest in the Solid Waste Management Marketplace Engagement Process for solid waste disposal, diversion, and new and emerging technologies, contain a requirement, as set out in Appendix "A" attached to this report, prohibiting respondents from lobbying Council members and staff;

(2)the prohibition against lobbying be effective from the date of the issuance of the Request for Expressions of Interest until a contract(s) is reached at the conclusion of the subsequent Request for Proposals phase, or the process is discontinued; and

(3)in conjunction with the implementation of the prohibition against lobbying as contained in Appendix "A", Council adopt the following protocol:

(i)should Members of Council wish to receive information from any respondent(s), then the request shall be made through the designated official as defined in Appendix "A"; and

(ii)in the event of any alleged breach of the requirement against lobbying, Council shall be the arbiter of the effect of such a breach.

Reference/Background/History:

On October 2, 1998, City Council provided direction to the Commissioner of Works and Emergency Services to:

"immediately proceed to engage the marketplace to secure solid waste management options including waste diversion and disposal capacity to meet the City's long-term requirements through a Request for Expressions of Interest and Request for Proposals process based on the work undertaken in the planning process to date, but without proceeding to the submission of an environmental assessment." (Clause No. 2 of Report No. 8 of TheWorks and Utilities Committee.)

Additional reports also listed on this agenda address:

-the SWM-MEP consultation program;

-a potential co-operative approach to solid waste management among Greater Toronto Area regional jurisdictions; and

-a request for authorization to issue the SWM-MEP Request for Expressions of Interest ("REOI").

This report focuses on the addition of an anti-lobbying clause to the two-stage proposal call.

Discussion and Justification:

The REOI document directs all potential respondents to request the document through one member of staff, and requires all questions concerning the document to be in writing and directed to the same staff member. The intent of these provisions is to ensure a single point of contact and avoid any confusion or contradictory advice being provided to respondents, thereby resulting in a more business-like approach.

During the previous RFP process carried out by the former Metro Toronto (1995-1996) it was found to be beneficial to have a provision in the document prohibiting lobbying and the solicitation of Council Members and staff. "Anti-lobbying" clauses had been adopted for the National Trade Centre proposal call and the Provincial Highway No. 407 project. Recently, the Regional Municipality of Peel engaged an anti-lobbying provision throughout their entire process for the contracting out of the operational components of their regional water supply and wastewater treatment facilities.

We are recommending the inclusion of such a clause in the SWM-MEP process as we anticipate, because of the major contracts involved, that intense lobbying will likely occur. The proposed clause is provided in the attached Appendix "A". We do not recommend that the prohibition against lobbying extend to interactions by proponents in the press regarding their specific proposals.

In addition, we are recommending that proponents be able to make public deputations at any public meeting of the Works and Utilities Committee in order to provide a direct channel of communication to Committee members in a public forum. In addition, we will be recommending, after the submission of proposals in response to the actual Request for Proposals, opportunities for short-listed proponents to address all Members of Council in one or more special informal briefing sessions on the benefits of their proposals.

Conclusions:

We recommend the inclusion of a prohibition against lobbying in the two-stage SWM-MEP effective from the date of the issuance of the REOI until a contract(s) is reached at the subsequent RFP stage or the process is discontinued. The purpose of such a provision is to alleviate any intense lobbying associated with the proposals that might be expected in a project of this size and scope.

The "anti-lobbying" clause (please see attached Appendix "A") will create a "one-window" approach for all proponents regarding the proposal call process. The clause does not prohibit proponents from making representations to the media. In order to provide a channel of communication with Councillors we are recommending that proponents be able to make deputations to any public meeting of the Works and Utilities Committee. In addition, we will be recommending that one or more special informal briefings for all Members of Council be convened following the identification of a short-list at the RFP stage in order to provide an opportunity for the short-listed proponents to present the benefits of their proposals.

Contact Name:

Lawson Oates, B.A., M.E.S.

Manager, Strategic Planning

Solid Waste Management Services

Works and Emergency Services

Phone: (416) 392-9744; Fax: (416) 392-4745

E-mail: lawson_oates@metrodesk.metrotor.on.ca

Appendix "A"

Solicitation:

If any director, officer, employee, agent or other representative of a respondent, including any other parties that may be involved in a joint venture or a consortium with the respondent, makes, from and after the date of issuance of this Request for Expressions of Interest, any representation or solicitation to any member of City Council ("Member") or any official, employee or agent of the City of Toronto, with the exception of Mr. Lawson Oates of Works and Emergency Services Department (the "Authorized Contact Person"), with respect to the respondent's proposal or any other respondent's proposal, City Council shall be entitled to reject the respondent's proposal.

A representation for the purposes of this requirement can be considered to be anything said or written to any Member, official, employee or agent which provides information advancing the interests of a proposal.

This requirement does not extend to representations made to the Authorized Contact Person or to any public deputation made to City Council's Works and Utilities Committee in accordance with the City's Procedural By-law, including any special briefing sessions for Members as may be authorized by City Council. The requirement also does not extend to statements made only to the reporting media.

Should a respondent desire that any information be presented to Members, the respondent may request the Authorized Contact Person to do so and that person will distribute such information to all Members and appropriate staff. Respondents are advised that if any Member directly approaches a respondent for information, the respondent is at jeopardy if he or she does make any representation to any Member in response.

The Works and Utilities Committee also submits the following report (April 7, 1999) from the Commissioner of Works and Emergency Services:

Purpose:

The purpose of this report is to provide examples of anti-lobbying clauses incorporated into requests for expressions of interest and requests for proposals of other jurisdictions, as requested by the Works and Utilities Committee on March 24, 1999.

Funding Sources, Financial Implications and Impact Statement:

There are no direct financial considerations arising from this report.

Recommendations:

It is recommended that:

(1)this report be received for information; and

(2)the recommendations contained in the March 15, 1999 report from the Commissioner of Works and Emergency Services regarding the establishment of a prohibition against lobbying be adopted.

Reference/Background/History:

Listed on the agenda of the Works and Utilities Committee meeting of March 24, 1999, was a report from the Commissioner of Works and Emergency Services titled "Solid Waste Management Marketplace Engagement Process - Prohibition Against Lobbying" (report dated March 15, 1999, listed as Item No. 4).

During discussion of this report, a request was made to the Commissioner to provide examples of anti-lobbying clauses employed by other jurisdictions.

Discussion and Justification:

Listed below are several examples of public works projects in which anti-lobbying clauses have been employed. Copies of the anti-lobbying clauses of each of these projects are attached at Appendix "A".

-City of New York, Marine Transfer Station and Solid Waste Disposal Request for Proposals;*

-Region of Peel - South Peel Water and Sewer Systems Competitive Operations Contract;

-Region of Halton - Halton Urban Structure Plan (HUSP), Request for Proposals;

-Region of Waterloo - Sewage System Competitive Operations Contract;

-Province of Ontario - Sale Transaction Highway 407; and

-Former Municipality of Metro Toronto, Request for Proposals for the Disposal of Metro's Residual Solid Waste.

*The attached extract from the City of New York Request for Proposals for solid waste transfer and disposal indicates that "no employee of the City of New York" other than the Authorized Contact Person is to be contacted regarding the Request for Proposals. We have confirmed with New York's Authorized Contact Person, Mr. Harry Szarpanski, that "employee" is defined as all staff employees and elected officials.

In recommending adoption of an anti-lobbying clause, our goal is not to close off communication between respondents and Councillors but to facilitate points of public contact through deputations, briefings for all Councillors, and study tours.

In addition, we would like to propose the formation of an RFP Review Committee to engage several Councillors to review with staff the process outcome in the selection of top-qualified respondents, prior to a staff report being issued to Committee and Council. This will be the subject of a further report following the completion of the REOI phase.

Conclusions:

Each of the municipal jurisdictions cited in this report supported the inclusion of an anti-lobbying clause when engaging the marketplace in the provision of public works related services. In the case of the Region of Peel's successful South Peel Water and Sewer Systems Competitive Operations Contract an anti-lobbying clause was put in place for the request for qualifications stage and the request for proposals stage. This is the recommended course of action for the City of Toronto as it proceeds to engage the marketplace for disposal and diversion capacity.

We recommend that this report be received and that the recommendations contained in the Commissioner's report of March 15, 1999, be adopted.

Contact Name:

Lawson Oates, B.A., M.E.S.

Manager, Strategic Planning

Solid Waste Management Services

Works and Emergency Services

Phone: (416) 392-9744; Fax: (416) 392-4745

E-mail: lawson_oates@metrodesk.metrotor.on.ca

The Works and Utilities Committee also submits the following communication (April 7, 1999) from Councillor Betty Disero, Chair, Works and Utilities Committee:

Here is the schedule of deputation items, as requested by the Committee, at our last meeting.

REOI (Diversion, Disposal, New and Emerging Technologies)

Works and Utilities Committee MeetingApril 12, 1999

Revised REOI Submitted for Approval:

Council Approves REOI:April 13, 14 and 15, 1999

REOI Issued:April 26, 1999

REOI's Received:May 31, 1999

(1)Presentations to Special Meeting of Works and

Utilities Committee by REOI Respondents:Early June 1999

Project Team Reviews Responses:June 1 to June 25, 1999

(2)Staff Report on Qualified Respondents:July 14, 1999 Committee

(*Public Deputations)Meeting

Public Notification of Potential Disposal Sites:Week of July 19, 1999

Consultation on Disposal RFP Criteria:July 19 to August 16, 1999

RFP for Disposal

(3)Present RFP to Committee/Council:September 1999 Committee

(*Public Deputations)Meeting

Council Approves Disposal RFP:September 1999

Issue Disposal RFP:October 1, 1999

Disposal RFP's Received:November 30, 1999

Evaluation of Proposals:November 30, 1999 to

January 30, 2000

(4)Presentations to Special Meeting ofMid-November 1999

Works and Utilities Committee by

RFP Respondents:

(5)Staff Report on Top-Qualified Respondents:February 2000

(*Public Deputations)

Proposed schedule for RFP for Diversion and New and Emerging Technologies will be subsequently submitted by the Commissioner of Works and Emergency Services.

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(A copy of the attachments referred to in the foregoing report dated April 7, 1999, has been forwarded to all Members of Council with the agenda for the special Works and Utilities Committee meeting of April 12, 1999, and a copy thereof is on file in the office of the City Clerk.)