Government may be open for business, but that doesn't mean doing business with government is the same as doing business in the private sector.
It can be a painful and costly learning curve for companies that want to sell goods and services to the country's largest buyer. Marcia Mills has experienced procurement from all angles, having negotiated just about every flavour of commercial or licensing arrangement and managed all the related IT and intellectual property issues. She has worked in private practice and as in-house counsel with Ottawa tech firms Mxi Technologies and Corel Corporation. For the past 10 years, Marcia served as senior legal counsel with the Government of Canada, where she led major Crown procurements as sole legal advisor.
But variety is the spice of life and law. Eager to again stretch her wings in private practice, Marcia decided earlier this year to leave government and join Fasken Ottawa, where she can consolidate and apply all she has learned over the past 20 years.
Q: How do you believe this varied experience will benefit Fasken clients in your new role?
Marcia: I can provide insight into actual operational requirements clients must implement to conclude a transaction with government. What does it take to negotiate? How must the various groups within a company – sales and marketing, engineering, finance, HR, senior management – come together to submit the bid, get the contract, and then ensure the resources are in place to execute on it and deliver?
Companies new to the public sector procurement process face unique compliance requirements that don't come into play with a typical private commercial transaction. I understand why government procurement works as it does and why it's so complex. Government decision makers are answerable to a very broad range of stakeholders, starting with the people who have paid the tax dollars that fund the government – you and me. In a public procurement, it's not just about getting the best deal, but also, protecting the public interest and meeting long-term policy objectives.
This complexity will not go away. What I hope to do is provide Fasken clients with the support, insight and advice they need to successfully do business in this kind of environment.
Q: What do you consider to be the most significant procurement-related challenges facing companies today?
Marcia: The procurement system is complex. I don't foresee any lessening of the complexity to any great degree, especially as we integrate the various international trade agreements into the system and the additional considerations arising from increased focus on cybersecurity and data protection, even though everyone involved would like it to be less so.
Competition is the rule in public procurement because it offers a fair, open and transparent environment, and meets the public objective that all potential suppliers get a fair kick at the can to sell to government. This is important, when you consider that, for example, DND is the largest procurer from the defense industry in Canada.
A company has to understand the processes that come into play in public procurements, such as the need to resource its RFP response team for a long period of time. Learning to deal with the length of time it takes to progress through a procurement cycle, and to navigate the processes, is a big challenge. Relationships matter in business, but developing a good working relationship with key decision makers in government departments or agencies can be difficult since government tends to have greater workforce mobility and people change in and out of roles frequently.
Q: Where and why do companies commonly misstep?
Marcia: Companies too often approach public procurement with a "commercial-centric" view. The federal government is trying to be as commercial as it can be, but there are still many limitations related to complying with applicable trade agreements, protecting the public interest, and serving policy objectives such as regional development and economic diversification.
For example, the potential to amend a contract awarded from a public procurement is much more limited than in a commercial setting. I have had instances where a company has won a contract and accepted the terms and conditions, yet within a year or so of contract award, they ask to renegotiate the terms, because they now realize in practical terms how restrictive the provisions of the contract are. It's a form of buyer's remorse. Even if adjustments can be made, they are limited in scope and it may still take months to work through necessary approvals.
Q: What lies on the horizon that requires an adjustment of how companies do business?
Marcia: In the very near term, we have the impact of the renegotiation of NAFTA which will likely have an impact on public procurement and may require both industry and government to adjust how they do business. There are also the other recent trade agreements that will impact procurement, both internally and internationally, including the Trans-Pacific Partnership and the Canada Free Trade Agreement. Suppliers have to understand how these agreements will influence how public entities beyond just the federal government procure goods and services.
In other areas, especially defence, we have the issue of cybersecurity and data protection. Companies face more stringent requirements, from both private and public sector clients, for disclosure regarding how their products function. Purchasers are increasingly requiring greater access to the underlying IP of the products they buy so they can test for, and understand cyber-threat vulnerabilities.
Cybersecurity issues are going to impact and underline any acquisition that involves IT – IT systems are going to have to work together. This will require a lot more cooperation and integration between suppliers that are bidding on large and complex projects that include multiple systems.
Q: Who is Marcia Mills when she is not the job?
Marcia: I think I am the same person. It's a hard question for me because even when I am not on the job, I'm thinking about it. To disconnect, I travel to somewhere without good cellular reception. I also unwind by spending time with family and friends, and I run.
I am also a huge supporter of mental health issues and awareness in the Ottawa area. I volunteer with the Royal Ottawa Hospital and sit on one of its committees.