Ottawa Citizen: LRT legal debacle shows Ottawa must overhaul procurement
We just can’t use this kind of process when the next big project comes along. It needs a total revamp, and that should be a council priority after the summer recess.
Photo by ERROL MCGIHON, Postmedia
From what we know about the Stage 2 LRT procurement process – and there may be a lot we don’t know – it is clear the system is broken. The more we learn about the $1.6-billion Trillium Line contract to SNC-Lavalin, the worse it gets, and there is little doubt now that the procurement regime needs a complete overhaul. And sooner than later.
On top of the controversy over the award of the Trillium contract to SNC-Lavalin despite its failure to meet the minimum technical score, questions are now being raised – fairly or unfairly – about potential conflict-of-interest involving the city’s external lawyers. According to a story by the Citizen’s Jon Willing, a law firm that works for the Montreal-based construction company is the very one the city hired to advise it on the $4.6-billion project (Confederation and Trillium Lines). In essence, while one arm of the law firm Norton Rose Fulbright was advising the city on the LRT project, another arm was working with SNC-Lavalin. The city says it knew of this link and found no conflict-of-interest whatsoever. Geoffrey Gilbert, Norton Rose Fulbright’s lead lawyer advising the city, stressed this point, assuring council of its commitment to the city, saying “we have conducted ourselves within that ambit and within that responsibility to ensure our advice was completely provided to our client, the City of Ottawa.”
That may well be, but there are many in the city who would agree with Coun. Catherine McKenney that the law firm’s involvement with SNC-Lavalin should have been publicly acknowledged much earlier. As the Citizen points out, the issue was raised by McKenney during the crucial March 6 council meeting at which the project was approved. But Mayor Jim Watson ruled the inquiry out of order and the issue was swept under the rug. It shouldn’t have been.
Geoffrey Gilbert, Norton Rose Fulbright’s lead lawyer advising the city, assured council of its commitment, saying “we have conducted ourselves within that ambit and within that responsibility to ensure our advice was completely provided to our client, the City of Ottawa.”
What raises eyebrows about Norton Rose Fulbright’s links with SNC-Lavalin is that it was Gilbert who advised that councillors not be told whether the company had met the technical standard set by the city – even in a closed session. We now know that SNC didn’t meet the 70-per-cent minimum score required by the city, but was waved through. City manager Steve Kanellakos explained in a recent memo that the city made that decision on legal advice, fearing a court challenge if it did not. Why the city feared a court challenge remains a mystery.
The city contends that everything about the Trillium procurement was examined and approved by a fairness commissioner who declared that it “was undertaken in a fair, open and transparent manner.” If this whole debacle represents what a fairness commissioner defines as fair, open and transparent, we probably can do without one on the next big project. It would make no difference.
In the end, what the Stage 2 LRT procurement gave us is a process in which city staff kept vital information from council. At least one councillor, McKenney, would have changed her vote if she had had it. It has also left us in the rather unfortunate situation of wondering about the law firm hired to represent the city, and by extension taxpayers.
First, why hire a law firm that has such links with a major company that is bidding for a large chunk of LRT work? Certainly, Norton Rose Fulbright is not the only law firm in Canada with LRT procurement experience. But having hired the firm – and talking about transparency – staff should have levelled with council about the firm at the beginning. It would have saved us the trouble we are in today. Unfortunately, the city now has a huge perception problem and everything it does looks suspicious. It has lost the benefit of the doubt.
What emerges from everything that has gone on is that the city’s procurement system is fatally flawed. It doesn’t instil public confidence. We just can’t use this kind of process when the next big project comes along. It needs a total revamp, and that should be a council priority after the summer recess.