Somerset Coun. Catherine McKenney said Monday she will press for answers about whether a law firm that has worked for both the city and embattled engineering giant SNC-Lavalin was in a conflict of interest.
McKenney originally raised the question at a March 6 council meeting, then again last week after councillors received a memo on Aug. 2 saying SNC-Lavalinfailed to reach the minimum 70 per cent technical score in bidding for the $1.6-billion Trillium Line light rail extension contract. Two other shortlisted firms scored better, but SNC’s bid price was better and the company received the top ranking when its financial score was combined with its technical score.
Norton Rose Fulbright, a law firm with offices around the world, including in Ottawa, Montreal, Quebec, Toronto, Calgary, and Vancouver, won a city contract to provide legal services for Stage 2. Geoffrey Gilbert, a procurement and commercial law expert, was the firm’s lead lawyer advising the City of Ottawa during the Stage 2 procurement.
The fact that Norton Rose Fulbright had also represented SNC came up on at a March 6 council meeting as councillors were debating the Stage 2 contracts. At the meeting, Gilbert declined to disclose details about the bid scoring to council, even if council went into a closed session, citing confidentiality provisions in the Stage 2 procurement process.
McKenney said she learned that the firm listed SNC as a client or a previous client when she was Googling for information. At the March 6 council meeting, McKenney asked if the law firm had declared a conflict of interest.
“I was ruled out of order,” said McKenney. “I thought it was pertinent. I never got a public answer.”
Norton Rose Fulbright has not responded to a request for comment. However, O-Train construction director Michael Morgan said Norton Rose Fulbright won the Stage 2 legal contract after a competitive process in 2016. The law firm had to disclose actual or potential conflicts of interest and they were cleared by the independent fairness commissioner, Morgan told this newspaper last week.
The city was “fully aware” Norton Rose Fulbright had advised other private organizations, including SNC, on unrelated matters. It didn’t create a conflict of interest in the Stage 2 procurement, he said.
McKenney says she believes that a law firm the size of Norton Rose Fulbright would be quite careful about conflict of interest. But there is still a lot that is unclear. She has no timeline for when the law firm worked for SNC and when it worked for the city, for example.
“Now that we have been informed that SNC did not meet the technical requirements, it would seem that the question is pertinent again,” she said. “It’s important that all of these decisions are made in a public and transparent way.”
In an emailed statement late Monday, Morgan said: “Releasing additional information related to specific evaluations during the active procurement phase would have been outside the process contemplated in the RFP and the March 2017 delegation of authority by Council to City Staff. Taking steps outside of the defined RFP process would in turn jeopardize the integrity of the process and potentially open the City of Ottawa to legal claims and litigation. At the time that the preferred proponent was presented to Council, the determination of the recommended preferred proponent had been identified following a complete and thorough technical evaluation process that was conducted in a manner consistent with the process defined in the RFP and in a manner consistent with the delegated authority given to the Executive Steering Committee by Council.
“Following the completion of the procurement process, the City disclosed information about the procurement evaluations, and redacted versions of the project agreements and procurement documents, to City Council and members of the public on August 2, 2019.”
City council’s next meeting, originally scheduled for Aug. 28, was cancelled in July due to a “light legislative agenda.” McKenney said she could ask her questions again at city council’s next meeting on Sept 11, but will only be able to do that if it is relevant to the discussion. She can also ask at the finance and economic development committee meeting on Sept. 10.
McKenney also has the option of requesting a formal inquiry, which would require a response from senior staff.
“I just believe the public has the right to a response.”