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Government keeps key parts of procurement conflict of interest report secret

The Crown corporation that regulates private colleges claims it has tightened procurement policies after it retained a law firm connected to its CEO without a tendering process in 2012.

But Private Career Training Institutions of Agency of B.C. and the Advanced Education Ministry are keeping secret nearly two-and-a-half pages of a three-page Feb. 21, 2013 report on PCTIA's Legal Procurement Practices. They cited exemptions in the Freedom of Information law that protect policy advice and prevent disclosure of information that the government fears may harm its finances.

That is not good enough, according to NDP Advanced Education critic David Eby.

"I'm concerned that a government agency like this could fail to see the importance of this issue and the need to be fully transparent about what they've done to fix what appears to be a serious problem with procurement," Eby told The Tyee.

The law firm Lawson Lundell was hired by PCTIA in 2012 to seek separate B.C. Supreme Court orders against Royal Canadian Institute of Technology and Prana Yoga Teacher College for non-compliance with PCTIA regulations. PCTIA CEO Karin Kirkpatrick is married to Murray Campbell, a partner at Lawson Lundell who heads the firm's pension and benefits law group. Kirkpatrick joined PCTIA in January 2011, volunteered on Premier Christy Clark's 2011 leadership campaign and donated $500, according to Elections BC. Clark appointed her in July 2011 to the Judicial Council of the Provincial Court of B.C. In 2013, Campbell donated $500 to the BC Liberals' election campaign.

Asked via an FOI request in 2012, PCTIA produced no evidence that any other firm was considered for either of the court actions. Kirkpatrick claimed PCTIA was not required to seek competitive bids, but she said at the time that it would request quotes or issue a formal request for proposals only for contracts $30,000 and up.

The only document PCTIA released was a Feb. 8, 2012 email from Kirkpatrick to then-PCTIA board chair Kelly Rainsforth in which the relationship was disclosed.

"(In-house lawyer) Luce (Lafontaine) has found another lawyer with Regulatory and Board experience," Kirkpatrick wrote in the email. "I let her make this selection using her own experience and judgment. She has gone with a fellow named Michael Lee (unless I hear otherwise) whom she has worked with previously and from Lawson Lundell.

"Now -- just in case there is a perception of conflict -- I wanted you to be aware that my soon-to-be husband is a partner at Lawson Lundell. Let me know if you have any concerns."

Kirkpatrick hired Lafontaine in early 2011 and Lafontaine reports directly to her. Kirkpatrick claimed via email that she also brought up her relationship with Campbell at a PCTIA board meeting, but "it was not formally documented."

"This is the way that people hire lawyers in their private lives, somebody is related to a lawyer, knows somebody who works at a law firm," Eby said. "That's not an acceptable process for a public agency, because it does raise questions of conflict of interest and who benefits from that contract."

Acting assistant deputy minister Joe Thompson's Feb. 21, 2013 internal review of PCTIA’s legal procurement practices were sent to then-PCTIA board chair Richard Novek. Thompson's letter indicated Kirkpatrick and Lafontaine were cooperative.

"The Crown Agency Resource Office, the organization responsible for providing ongoing expertise, advice, information and support to ministries and Crown corporations to promote good governance, accountability and continuous improvement, has advised that Crown corporations, such as PCTIA, are encouraged but not required to follow government's procurement policies and procedures on (request for proposals) or (requests for quotes)," said the review. "PCTIA uses RFPs and RFQs to solicit competitive bids on larger projects."

The factual summary of the case was censored by the ministry. Of the three recommendations, two are partially visible. They include formalize-in-writing the procurement and purchasing policies "to reflect an open, fair and transparent process" and to "ensure clear guidelines are available to the board and staff."

An emailed statement from PCTIA's board, through chair David Wells, said: "The Board is satisfied that the process followed to select legal service providers in 2012 and 2013 was appropriate and is pleased that the Ministry's report has indicated the same. In response to the recommendations from the Ministry report, the Agency amended its procurement policy in February 2013 to include the requirement for annual approval by the Board of the list of legal vendors from which Agency staff may draw."

PCTIA has refused to disclose how much it paid Lawson Lundell for legal services in 2012, claiming payment information is protected by solicitor-client privilege. Other Crown corporations, such as BC Hydro, routinely publish lump sum amounts paid to law firms in their annual lists of suppliers of goods and services.

In 2012, PCTIA also received legal advice from Ng Ariss Fong, Harris and Co., and Hunter Litigation Chambers.

Vancouver journalist Bob Mackin is a frequent contributor to The Tyee.

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